exv10w8






EXHIBIT 10.8




EXECUTION VERSION




REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




dated as of June 27, 2008




between




EACH OF THE GRANTORS PARTY HERETO




and




GENERAL ELECTRIC CAPITAL CORPORATION,




as Collateral Agent




 









 




TABLE
OF CONTENTS





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	Page	 
	SECTION 1. DEFINITIONS; GRANT OF SECURITY	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	1.1	 	 	General Definitions
	 	 	2	 
	 

	 	 	1.2	 	 	Definitions; Interpretation
	 	 	9	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 2. GRANT OF SECURITY	 	 	9	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	2.1	 	 	Grant of Security
	 	 	9	 
	 

	 	 	2.2	 	 	Certain Limited Exclusions
	 	 	11	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	3.1	 	 	Security for Obligations	 	 	12	 
	 

	 	 	3.2	 	 	Continuing Liability Under Collateral
	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS	 	 	12	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	4.1	 	 	Generally
	 	 	12	 
	 

	 	 	4.2	 	 	Equipment and Inventory
	 	 	15	 
	 

	 	 	4.3	 	 	Receivables
	 	 	16	 
	 

	 	 	4.4	 	 	Investment Related Property
	 	 	19	 
	 

	 	 	4.5	 	 	Material Contracts
	 	 	26	 
	 

	 	 	4.6	 	 	Letter of Credit Rights
	 	 	27	 
	 

	 	 	4.7	 	 	Intellectual Property
	 	 	27	 
	 

	 	 	4.8	 	 	Commercial Tort Claims
	 	 	30	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL GRANTORS	 	 	30	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	5.1	 	 	Access; Right of Inspection
	 	 	30	 
	 

	 	 	5.2	 	 	Further Assurances
	 	 	30	 
	 

	 	 	5.3	 	 	Additional Grantors
	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	6.1	 	 	Power of Attorney
	 	 	32	 
	 

	 	 	6.2	 	 	No Duty on the Part of Collateral Agent or Secured Parties
	 	 	33	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 7. REMEDIES	 	 	33	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	7.1	 	 	Generally
	 	 	33	 
	 

	 	 	7.2	 	 	Application of Proceeds
	 	 	35	 






 









 





TABLE
OF CONTENTS
(cont.)





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	Page	 
	 

	 	 	7.3	 	 	Sales on Credit
	 	 	35	 
	 

	 	 	7.4	 	 	Deposit Accounts
	 	 	35	 
	 

	 	 	7.5	 	 	Investment Related Property
	 	 	36	 
	 

	 	 	7.6	 	 	Intellectual Property
	 	 	36	 
	 

	 	 	7.7	 	 	Cash Proceeds
	 	 	38	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 8. COLLATERAL AGENT	 	 	39	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS	 	 	40	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM	 	 	40	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 11. AMENDMENTS, MODIFICATIONS	 	 	41	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 12. ACKNOWLEDGMENT	 	 	41	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 13. MISCELLANEOUS	 	 	42	 






SCHEDULE 4.1 — GENERAL INFORMATION




SCHEDULE 4.2 — LOCATION OF EQUIPMENT, INVENTORY AND OTHER GOODS




SCHEDULE 4.4 — INVESTMENT RELATED PROPERTY




SCHEDULE 4.6 — DESCRIPTION OF LETTERS OF CREDIT




SCHEDULE 4.7 — INTELLECTUAL PROPERTY — EXCEPTIONS




SCHEDULE 4.8 — COMMERCIAL TORT CLAIMS




EXHIBIT A — PLEDGE SUPPLEMENT




EXHIBIT B — UNCERTIFICATED SECURITIES CONTROL AGREEMENT




EXHIBIT C — INTELLECTUAL PROPERTY SECURITY AGREEMENT




ii









 





          This REVOLVING CREDIT AGREEMENT PLEDGE AND SECURITY AGREEMENT, dated as of June 27, 2008 (this
“Agreement”), between EACH OF THE UNDERSIGNED, whether as an original signatory hereto or as an
Additional Grantor (as herein defined) (each, a “Grantor” and collectively, the “Grantors”), and
GENERAL ELECTRIC CAPITAL CORPORATION, as collateral agent for the Secured Parties (as herein
defined) (in such capacity as collateral agent, the “Collateral Agent”).




RECITALS:




     WHEREAS, reference is made to that certain Senior Secured Revolving Credit and Guaranty
Agreement, dated as of the date hereof (as it may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among Dura Operating Corp., a Delaware
corporation (“Company”), Dura Automotive Systems, Inc. (f/k/a “New Dura, Inc.”), a Delaware
corporation (“Parent”), certain Subsidiaries of Holdings and the Company, the Lenders party thereto
from time to time (the “Lenders”), Wachovia Bank, National Association, as syndication agent,
General Electric Capital Corporation, as administrative agent and as collateral agent and Bank of
America, as Issuing Bank and documentation agent;



     WHEREAS, on October 30, 2006, Holdings, Company and certain of its subsidiaries each filed a
voluntary petition for relief under Chapter 11 of the Bankruptcy Code with the United States
Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) which have been jointly
administered under case number 06-112-2 (KJC) (each a “Chapter 11 Case” and collectively, the
"Chapter 11 Cases”);



     WHEREAS, on May 13, 2008, the Bankruptcy Court confirmed the Revised Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code (with Further Technical Amendments), dated
May 12, 2008 (the “Plan”), submitted by the debtors in the Chapter 11 Cases;



     WHEREAS, subject to the terms and conditions of the Credit Agreement, certain Grantors may
enter into one or more Hedge Agreements with one or more Lender Counterparties;



     WHEREAS, in consideration of the extensions of credit and other accommodations of Lenders and
Lender Counterparties as set forth in the Credit Agreement and the Hedge Agreements, respectively,
each Grantor has agreed to secure such Grantor’s obligations under the Credit Documents and the
Hedge Agreements as set forth herein; and



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, each Grantor and the Collateral Agent agree as follows:



 









 





SECTION 1. DEFINITIONS; GRANT OF SECURITY.




     1.1 General Definitions. In this Agreement, the following terms shall have the following
meanings:



          “Account Debtor” shall mean each Person who is obligated on a Receivable or any Supporting
Obligation related thereto.



          “Additional Grantors” shall have the meaning assigned in Section 5.3.



          “Agreement” shall have the meaning set forth in the preamble.



          “Assigned Agreements” shall mean all agreements and contracts to which such Grantor is a party
as of the date hereof, or to which such Grantor becomes a party after the date hereof, including,
without limitation, each Material Contract, as each such agreement may be amended, supplemented or
otherwise modified from time to time.



          “Cash Proceeds” shall have the meaning assigned in Section 7.7.



          “Chattel Paper” shall mean all “chattel paper” as defined in Article 9 of the UCC, including,
without limitation, “electronic chattel paper” or “tangible chattel paper”, as each term is defined
in Article 9 of the UCC.



          “Collateral” shall have the meaning assigned in Section 2.1.



          “Collateral Agent” shall have the meaning set forth in the preamble.



          “Collateral Records” shall mean books, records, ledger cards, files, correspondence, customer
lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes,
disks and related data processing software and similar items that at any time evidence or contain
information relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon.



          “Collateral Support” shall mean all property (real or personal) assigned, hypothecated or
otherwise securing any Collateral and shall include any security agreement or other agreement
granting a lien or security interest in such real or personal property.



          “Commercial Tort Claims” shall mean all “commercial tort claims” as defined in Article 9 of
the UCC, including, without limitation, all commercial tort claims listed on Schedule 4.8 (as such
schedule may be amended or supplemented from time to time).



          “Commodities Accounts” (i) shall mean all “commodity accounts” as defined in Article 9 of the
UCC and (ii) shall include, without limitation, all of the accounts listed on Schedule 4.4 under
the heading “Commodities Accounts” (as such schedule may be amended or supplemented from time to
time).



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          “Company” shall have the meaning set forth in the recitals.



          “Contractual Obligation” shall mean, as applied to any Person, any provision of any Security
issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject.



          “Copyright Licenses” shall mean any and all agreements providing for the granting of any right
in or to Copyrights (whether such Grantor is licensee or licensor thereunder).



          “Copyrights” shall mean all United States and foreign copyrights (including Community designs)
owned by a Grantor, including but not limited to copyrights in software and databases, and all Mask
Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or
unregistered, and, with respect to any and all of the foregoing: (i) all registrations and
applications therefor including, without limitation, the registrations and applications referred to
in Schedule 4.7(A) (as such schedule may be amended or supplemented from time to time), (ii) all
extensions and renewals thereof, (iii) all rights corresponding thereto throughout the world, (iv)
all rights to sue for past, present and future infringements thereof, and (v) all Proceeds of the
foregoing, including, without limitation, licenses, royalties, income, payments, claims, damages
and proceeds of suit.



          “Credit Agreement” shall have the meaning set forth in the recitals.



          “Deposit Accounts” (i) shall mean all “deposit accounts” as defined in Article 9 of the UCC
and (ii) shall include, without limitation, all of the accounts listed on Schedule 4.4 under the
heading “Deposit Accounts” (as such schedule may be amended or supplemented from time to time).



          “Discharge of Term Loan Obligations” shall have the meaning set forth in the Intercreditor
Agreement.



          “Documents” shall mean all “documents” as defined in Article 9 of the UCC.



          “Equipment” shall mean: (i) all “equipment” as defined in Article 9 of the UCC, (ii) all
machinery, manufacturing equipment, data processing equipment, computers, office equipment,
furnishings, furniture, appliances, fixtures and tools (in each case, regardless of whether
characterized as equipment under the UCC) and (iii) all accessions or additions thereto, all parts
thereof, whether or not at any time of determination incorporated or installed therein or attached
thereto, and all replacements therefor, wherever located, now or hereafter existing, including any
fixtures.



          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any successor thereto.



3









 





          “Excluded Property” shall have the meaning set forth in Section 2.2.



          “First Priority” shall mean, with respect to any Lien purported to be created in any Revolving
Credit Priority Collateral pursuant to any Collateral Document, that such Lien is the only Lien to
which such Collateral is subject, other than any Permitted Lien which is junior in priority to the
Collateral Agent’s Lien on such Collateral and inchoate Liens arising by operation of law for which
amounts are not yet due and payable.



          “General Intangibles” (i) shall mean all “general intangibles” as defined in Article 9 of the
UCC, including “payment intangibles” also as defined in Article 9 of the UCC and (ii) shall
include, without limitation, all interest rate or currency protection or hedging arrangements, all
tax refunds, all licenses, permits, concessions and authorizations, all Assigned Agreements and all
Intellectual Property (in each case, regardless of whether characterized as general intangibles
under the UCC).



          “Goods” (i) shall mean all “goods” as defined in Article 9 of the UCC and (ii) shall include,
without limitation, all Inventory and Equipment (in each case, regardless of whether characterized
as goods under the UCC).



          “Grantors” shall have the meaning set forth in the preamble.



          “Indemnitee” shall mean the Collateral Agent, and its Affiliates’ officers, partners,
directors, trustees, employees, agents.



          “Instruments” shall mean all “instruments” as defined in Article 9 of the UCC.



          “Insurance” shall mean (i) all insurance policies covering any or all of the Collateral
(regardless of whether the Collateral Agent is the loss payee thereof) and (ii) any key man life
insurance policies.



          “Intellectual Property” shall mean, collectively, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets, and the
Trade Secret Licenses.



          “Internal Revenue Code” shall mean the United States Internal Revenue Code of 1986, as amended
from time to time.



          “Inventory” shall mean (i) all “inventory” as defined in Article 9 of the UCC and (ii) all
goods held for sale or lease or to be furnished under contracts of service or so leased or
furnished, all raw materials, work in process, finished goods, and materials used or consumed in
the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such
inventory or otherwise used or consumed in any Grantor’s business; all goods in which any Grantor
has an interest in mass or a joint or other interest or right of any kind; and all goods which are
returned to or repossessed by any Grantor, all computer programs embedded in any goods and all
accessions thereto



4









 







and products thereof (in each case, regardless of whether characterized as inventory under the
UCC).



          “Investment Accounts” shall mean the Securities Accounts, Commodities Accounts and Deposit
Accounts.



          “Investment Related Property” shall mean: (i) all “investment property” (as such term is
defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as
investment property under the UCC): all Pledged Equity Interests, Pledged Debt, the Investment
Accounts and certificates of deposit.



          “Lenders” shall have the meaning set forth in the recitals.



          “Letter of Credit Right” shall mean “letter-of-credit right” as defined in Article 9 of the
UCC.



          “Money” shall mean “money” as defined in the UCC.



          “Non-Assignable Contract” shall mean any agreement, contract or license to which any Grantor
is a party that by its terms purports to restrict or prevent the assignment or granting of a
security interest therein (either by its terms or by any federal or state statutory prohibition or
otherwise unless such prohibition or restriction is unenforceable under Section 9-406 through 409
of the UCC.



          “Obligations” shall have the meaning set forth in the Credit Agreement.



          “Patent Licenses” shall mean all agreements providing for the granting of any right in or to
Patents (whether such Grantor is licensee or licensor thereunder).



          “Patents” shall mean all United States and foreign patents and certificates of invention, or
similar industrial property rights, and applications for any of the foregoing, in each case owned
by a Grantor, including, but not limited to: (i) each patent and patent application referred to in
Schedule 4.7(B) hereto (as such schedule may be amended or supplemented from time to time), (ii)
all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and
reexaminations thereof, (iii) all rights corresponding thereto throughout the world, (iv) all
inventions and improvements described therein, (v) all rights to sue for past, present and future
infringements thereof, (vi) all licenses, claims, damages, and proceeds of suit arising therefrom,
and (vii) all Proceeds of the foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages, and proceeds of suit.



          “Pledge Supplement” shall mean any supplement to this agreement in substantially the form of
Exhibit A.



          “Pledged Debt” shall mean all Indebtedness owed to a Grantor, including, without limitation,
all Indebtedness described on Schedule 4.4(A) under the heading “Pledged Debt” (as such schedule
may be amended or supplemented from time to time), issued by the obligors named therein, the
instruments evidencing such Indebtedness, and



5









 







all interest, cash, instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such
Indebtedness.



          “Pledged Equity Interests” shall mean all Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests.



          “Pledged LLC Interests” shall mean all interests directly owned by a Grantor in any limited
liability company including, without limitation, all limited liability company interests listed on
Schedule 4.4(A) under the heading “Pledged LLC Interests” (as such schedule may be amended or
supplemented from time to time) and the certificates, if any, representing such limited liability
company interests and any interest of such Grantor on the books and records of such limited
liability company or on the books and records of any securities intermediary pertaining to such
interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such limited liability company interests.



          “Pledged Partnership Interests” shall mean all interests directly owned by a Grantor in any
general partnership, limited partnership, limited liability partnership or other partnership
including, without limitation, all partnership interests listed on Schedule 4.4(A) under the
heading “Pledged Partnership Interests” (as such schedule may be amended or supplemented from time
to time) and the certificates, if any, representing such partnership interests and any interest of
such Grantor on the books and records of such partnership or on the books and records of any
securities intermediary pertaining to such interest and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such
partnership interests.



          “Pledged Stock” shall mean all shares of capital stock directly owned by a Grantor, including,
without limitation, all shares of capital stock described on Schedule 4.4(A) under the heading
“Pledged Stock” (as such schedule may be amended or supplemented from time to time), and the
certificates, if any, representing such shares and any interest of such Grantor in the entries on
the books of the issuer of such shares or on the books of any securities intermediary pertaining to
such shares, and all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares.



          “Pledged Trust Interests” shall mean all interests directly owned by a Grantor in a Delaware
business trust or other trust including, without limitation, all trust interests listed on Schedule
4.4(A) under the heading “Pledged Trust Interests” (as such schedule may be amended or supplemented
from time to time) and the certificates, if any, representing such trust interests and any interest
of such Grantor on the books and records of such trust or on the books and records of any
securities intermediary pertaining to such interest and all dividends, distributions, cash,
warrants, rights, options, instruments,



6









 







securities and other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such trust interests provided however,
that such definition shall exclude the Pledged Trust Interests of Dura Automotive Systems Capital
Trust, a Delaware business trust.



          “Proceeds” shall mean: (i) all “proceeds” as defined in Article 9 of the UCC, (ii) payments
or distributions made with respect to any Investment Related Property and (iii) whatever is
receivable or received when Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary.



          “Purchase Money Lien” shall mean purchase money Liens granted by such Grantor (including the
interest of a lessor under a Capital Lease, sale and lease-back transactions and purchase money
Liens to which any property is subject at the time, on or after the date hereof, of such Grantor’s
acquisition thereof) securing Indebtedness permitted under Sections 6.1(i) or 6.1(j) of the Credit
Agreement and limited in each case to the property purchased with the proceeds of such purchase
money Indebtedness or subject to such Capital Lease or sale and lease-back transaction.



          “Receivables” shall mean all rights to payment, whether or not earned by performance, for
goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services
rendered or to be rendered, including, without limitation all such rights constituting or evidenced
by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property,
together with all of Grantor’s rights, if any, in any goods or other property giving rise to such
right to payment and all Collateral Support and Supporting Obligations related thereto and all
Receivables Records.



          “Receivables Records” shall mean (i) all original copies of all documents, instruments or
other writings or electronic records or other Records evidencing the Receivables, (ii) all books,
correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers
relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer
discs, computer runs, record keeping systems and other papers and documents relating to the
Receivables, whether in the possession or under the control of Grantor or any computer bureau or
agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of
financing statements and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other creditors or secured
parties, and certificates, acknowledgments, or other writings, including, without limitation, lien
search reports, from filing or other registration officers, (iv) all credit information, reports
and memoranda relating thereto and (v) all other written or nonwritten forms of information related
in any way to the foregoing or any Receivable.



          “Record” shall have the meaning specified in Article 9 of the UCC.



          “Revolving Credit Priority Collateral” shall have the meaning set forth in the Intercreditor
Agreement.



7









 





          “Second Lien Term Loan Collateral Agent” shall have the meaning set forth in the Intercreditor
Agreement.



          “Second Lien Term Loan Priority Collateral” shall have the meaning set forth in the
Intercreditor Agreement.



          “Second Priority” shall mean, with respect to any Lien created in any Second Lien Term Loan
Priority Collateral pursuant to any Collateral Document, that such Lien is subordinated solely to
the Liens on such Collateral securing the Indebtedness under the Second Lien Term Loan Agreement
and any Permitted Lien.



          “Secured Obligations” shall have the meaning assigned in Section 3.1.



          “Securities Accounts” (i) shall mean all “securities accounts” as defined in Article 8 of the
UCC and (ii) shall include, without limitation, all of the accounts listed on Schedule 4.4(A) under
the heading “Securities Accounts” (as such schedule may be amended or supplemented from time to
time).



          “Supporting Obligation” shall mean all “supporting obligations” as defined in Article 9 of the
UCC.



          “Trademark Licenses” shall mean any and all agreements providing for the granting of any right
in or to Trademarks (whether such Grantor is licensee or licensor thereunder).



          “Trademarks” shall mean all United States and foreign trademarks, trade names, corporate
names, company names, business names, fictitious business names, Internet domain names, service
marks, certification marks, collective marks, logos, other source or business identifiers, designs
and general intangibles of a like nature, all registrations and applications for any of the
foregoing, in each case owned by a Grantor, including, but not limited to: (i) the registrations
and applications referred to in Schedule 4.7(C) (as such schedule may be amended or supplemented
from time to time), (ii) all extensions or renewals of any of the foregoing, (iii) all of the
goodwill of the business connected with the use of and symbolized by the foregoing, (iv) the right
to sue for past, present and future infringement or dilution of any of the foregoing or for any
injury to goodwill, and (v) all Proceeds of the foregoing, including, without limitation, licenses,
royalties, income, payments, claims, damages, and proceeds of suit.



          “Trade Secret Licenses” shall mean any and all agreements providing for the granting of any
right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder).



          “Trade Secrets” shall mean all trade secrets and all other confidential or proprietary
information and know-how, in each case owned by a Grantor, whether or not such trade secret has
been reduced to a writing or other tangible form, including all documents and things embodying,
incorporating, or referring in any way to such trade secret, including but not limited to: (i) the
right to sue for past, present and future misappropriation or other violation of any trade secret,
and (ii) all Proceeds of the



8









 







foregoing, including, without limitation, licenses, royalties, income, payments, claims,
damages, and proceeds of suit.



          “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of
New York or, when the context implies, the Uniform Commercial Code as in effect from time to time
in any other applicable jurisdiction.



          “United States” shall mean the United States of America.



          “Vehicles” means all vehicles covered by a certificate of title law of any state.



     1.2 Definitions; Interpretation. All capitalized terms used herein (including the preamble
and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in
the Credit Agreement or, if not defined therein, in the UCC. References to “Sections,” “Exhibits”
and “Schedules” shall be to Sections, Exhibits and Schedules, as the case may be, of this Agreement
unless otherwise specifically provided. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect. Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the plural, depending on the reference. The
use herein of the word “include” or “including”, when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as “without limitation” or “but not limited to” or words of similar
import) is used with reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement, term or matter.
This Agreement and the other Credit Documents may use several different limitations, tests or
measurements to regulate the same or similar matters, all of which are cumulative and each shall be
performed in accordance with its terms. If any conflict or inconsistency exists between this
Agreement and the Credit Agreement, the Credit Agreement shall govern. All references herein to
provisions of the UCC shall include all successor provisions under any subsequent version or
amendment to any Article of the UCC.



SECTION 2. GRANT OF SECURITY.




     2.1 Grant of Security. Each Grantor hereby hypothecates to the Collateral Agent on behalf of
the Secured Parties, and grants to the Collateral Agent on behalf of the Secured Parties a security
interest in and continuing lien on, all of such Grantor’s right, title and interest in, to and
under all of the following personal property, real and mixed, of such Grantor, in each case whether
now owned or existing or hereafter acquired or arising and wherever located (all of which being
hereinafter collectively referred to as the “Collateral”):



          (a) Accounts;



          (b) As-extracted Collateral;



9









 





          (c) Chattel Paper;



          (d) Commercial Tort Claims listed on Schedule 4.8 (as such schedule may be amended or
supplemented from time to time);



          (e) Commodities Accounts;



          (f) Deposit Accounts;



          (g) Documents;



          (h) Equipment;



          (i) General Intangibles;



          (j) Goods;



          (k) Instruments;



          (l) Insurance;



          (m) Intellectual Property;



          (n) Investment Related Property;



          (o) Letter of Credit Rights;



          (p) Money



          (q) Receivables and Receivable Records;



          (r) Securities Accounts;



          (s) Vehicles;



          (t) to the extent not otherwise included, all causes of action and all monies and other
property of any kind received therefrom, and all monies and other property of any kind recovered by
any Grantor;



          (u) to the extent not otherwise included, all monies and other property of any kind which is
received by such Grantor in connection with refunds with respect to taxes, assessments and
governmental charges imposed on such Grantor or any of its property or income;



          (v) to the extent not otherwise included above, all Collateral Records, Collateral Support and
Supporting Obligations relating to any of the foregoing;



          (w) to the extent not otherwise included, all other personal property of such Grantor, whether
tangible or intangible; and



10









 





          (x) to the extent not otherwise included above, all Proceeds, products, accessions, rents and
profits of or in respect of any of the foregoing.



     Notwithstanding anything to the contrary contained in this section, the term “Collateral”
shall not include any Excluded Property.



     2.2 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event
shall the Collateral include or the security interest granted under Section 2.1 hereof attach to
(a) any lease, license, contract, property rights or agreement (including, without limitation,
Assigned Agreements) to which any Grantor is a party or any of its rights or interests thereunder
if and for so long as the grant of such security interest shall constitute or result in (i) the
abandonment, invalidation or unenforceability of any right, title or interest of any Grantor
therein or (ii) a breach or termination pursuant to the terms of, or a default under, any such
lease, license, contract property rights or agreement (other than to the extent that any such term
would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any
successor provision or provisions) of any relevant jurisdiction or any other applicable law or
principles of equity), provided however that the Collateral shall include and such security
interest shall attach immediately at such time as the condition causing such abandonment,
invalidation or unenforceability shall be remedied and to the extent severable, shall attach
immediately to any portion of such Lease, license, contract, property rights or agreement that does
not result in any of the consequences specified in (i) or (ii) above; (b) any of the outstanding
voting Capital Stock of each first-tier Foreign Subsidiary listed on Schedule 3.1(g) to the Credit
Agreement in excess of the percentages set forth on such schedule and any of the voting Capital
Stock of each first-tier Foreign Subsidiary created or acquired after the date hereof in excess of
65% of such outstanding voting Capital Stock; provided that immediately upon the amendment of the
Internal Revenue Code to allow the pledge of a greater percentage of the voting power of Capital
Stock in a Foreign Subsidiary without adverse tax consequences (other than de minimus tax
consequences), the Collateral shall include, and the security interest granted by each Grantor
shall attach to, such greater percentage of Capital Stock of each Foreign Subsidiary; provided,
further, that such limitations with respect to Capital Stock of a Foreign Subsidiary shall not
apply to the extent that the obligations under the Second Lien Term Loan Credit Agreement are
secured by more than 65% of the Capital Stock of such Foreign Subsidiary; (c) all Capital Stock of
Foreign Subsidiaries which are not first-tier Foreign Subsidiaries; (d) automobiles and other
assets subject to certificates of title; (e) assets of any foreign Subsidiary; (f) any “intent to
use” Trademark applications for which a statement of use has not been filed (but only until such
statement is filed); (g) Equipment owned by any Grantor that is subject to a purchase money Lien or
a Capital Lease if the contract or other agreement in which such Lien is granted (or in the
documentation providing for such Capital Lease) prohibits or requires the consent of any Person
other than the Borrower and its Affiliates as a condition to the creation of any other Lien on such
Equipment; (h) any interest in foreign Joint Ventures and non-wholly owned Foreign Subsidiaries
which cannot be pledged without the consent of one or more third parties; and (j) any assets with
respect to which the Collateral Agent, in consultation with the Company shall reasonably determine
that the cost of creating and/or perfecting the security interest therein is excessive in relation
to the benefit to the



11









 







Secured Parties (collectively, (the “Excluded Property”)); provided, however,
the foregoing shall not include any Proceeds, substitutions or replacements of the above (unless
such Proceeds, substitutions or replacements would constitute Excluded Property). Notwithstanding
anything to the contrary contained herein, (x) the Grantors shall not be required to take any
action intended to cause any Excluded Property to constitute Collateral, (y) each defined term used
in describing types or categories of Collateral, including those used in Sections 2.1(a) through
(x) above, shall be deemed to exclude all Excluded Property and (z) none of the representations,
warranties and covenants shall be deemed to apply to any property constituting Excluded Property.



SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.




     3.1 Security for Obligations. This Agreement secures, and the Collateral is collateral
security for, the prompt and complete payment or performance in full when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise of all Obligations
with respect to every Grantor (the “Secured Obligations”).



     3.2 Continuing Liability Under Collateral. Notwithstanding anything herein to the contrary,
(i) each Grantor shall remain liable for all obligations under the Collateral and nothing contained
herein is intended or shall be a delegation of duties to the Collateral Agent or any Secured Party,
(ii) each Grantor shall remain liable under each of the agreements included in the Collateral,
including, without limitation, any agreements relating to Pledged Partnership Interests or Pledged
LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with
and pursuant to the terms and provisions thereof and neither the Collateral Agent nor any Secured
Party shall have any obligation or liability under any of such agreements by reason of or arising
out of this Agreement or any other document related thereto nor shall the Collateral Agent nor any
Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any
payment received by it or have any obligation to take any action to collect or enforce any rights
under any agreement included in the Collateral, including, without limitation, any agreements
relating to Pledged Partnership Interests or Pledged LLC Interests, and (iii) the exercise by the
Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its
duties or obligations under the contracts and agreements included in the Collateral.



SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.




     4.1 Generally.



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, on
the Closing Date and on each Credit Date, that:




          (i) it owns the Collateral purported to be owned by it or otherwise has the rights it
purports to have in each item of Collateral and, as to all Collateral whether now existing
or hereafter acquired, will continue to own or



12









 







have such rights in each item of the Collateral, in each case free and clear of any
and all Liens, rights or claims of all other Persons other than Permitted Liens;




          (ii) it has indicated on Schedule 4.1(A)(as such schedule may be amended or
supplemented from time to time): (w) the type of organization of such Grantor, (x) the
jurisdiction of organization of such Grantor, (y) its organizational identification number
(if applicable) and (z) the jurisdiction where the chief executive office or its sole place
of business is (or the principal residence if such Grantor is a natural person), and for
the one-year period preceding the date hereof has been, located.




          (iii) the full legal name of such Grantor is as set forth on Schedule 4.1(A) and it
has not done in the last one (1) year, and does not do, business under any other name
(including any trade name or fictitious business name) except for those names set forth on
Schedule 4.1(B) (as such schedule may be amended or supplemented from time to time);




          (iv) except as provided on Schedule 4.1(C) or to the extent permitted under the Credit
Agreement, it has not changed its name, jurisdiction of organization, chief executive
office, or sole place of business (or principal residence if such Grantor is a natural
person) or its corporate structure in any way (e.g., by merger, consolidation, change in
corporate form or otherwise) within the past one (1) year;




          (v) it has not within the last one (1) year become bound (whether as a result of
merger or otherwise) as debtor under a security agreement entered into by another Person,
which has not heretofore been terminated other than the agreements identified on Schedule
4.1(D) hereof (as such schedule may be amended or supplemented from time to time) or in
connection with Permitted Liens;




          (vi) upon the timely and proper filing of (A) financing statements naming each Grantor
as “debtor” and the Collateral Agent as “secured party” and describing the Collateral in
the filing offices set forth opposite such Grantor’s name on Schedule 4.1 hereof and (B) an
Intellectual Property Security Agreement in the form of Exhibit C hereto in the United
States Copyright Office or United States Patent and Trademark Office (as applicable), the
Liens and security interests granted to the Collateral Agent hereunder constitute valid and
perfected (x) First Priority Liens on all of the Revolving Credit Priority Collateral and
(y) Second Priority Liens on all of the Second Lien Term Loan Priority Collateral in each
case covered by this clause (vi) to the extent that any such Liens can be perfected by the
filing of a financing statement or an Intellectual Property Security Agreement in the
United States Copyright Office or United States Patent and Trademark Office (as
applicable);




          (vii) all actions and consents, including all filings, notices, registrations and
recordings which have been reasonably requested by the



13









 







Collateral Agent for the exercise by the Collateral Agent of the voting or other
rights provided for in this Agreement or the exercise of remedies in respect of the
Collateral have been made or obtained;




          (viii) other than the financing statements filed in favor of the Collateral Agent, no
effective UCC, fixture filing or other instrument similar in effect under any applicable
law covering all or any part of the Collateral is on file in any filing or recording office
except for (a) financing statements for which proper termination statements have been
delivered to the Collateral Agent for filing and (b) financing statements filed in
connection with Permitted Liens;




          (ix) no authorization, approval or other action by, and no notice to or filing with,
any Governmental Authority or regulatory body is required for either (i) the pledge or
grant by any Grantor of the Liens purported to be created in favor of the Collateral Agent
hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in respect of
any Collateral (whether specifically granted or created hereunder or created or provided
for by applicable law), except (A) for the filings contemplated by clause (vi) above, (B)
as may be required, in connection with the disposition of any Investment Related Property,
by laws generally affecting the offering and sale of Securities and (C) approvals, filings
and authorizations already obtained;




          (x) all written information supplied by any Grantor with respect to any of the
Collateral (in each case taken as a whole with respect to any particular Collateral) is
true and complete in all material respects; and




          (xi) none of the Collateral constitutes, or is the Proceeds of, “farm products” (as
defined in the UCC).



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that:





          (i) except for the security interest created by this Agreement and Permitted Liens, it
shall not create or suffer to exist any Lien upon or with respect to any of the Collateral
and such Grantor shall defend the Collateral against all Persons at any time claiming any
interest therein, except as otherwise permitted in the Credit Agreement (including, without
limitation, Section 5.3 of the Credit Agreement);




          (ii) it shall not produce, use or permit any Collateral to be used by it unlawfully or
in violation of any provision of this Agreement or any applicable statute, regulation or
ordinance or any policy of insurance covering the Collateral;




          (iii) it shall not change such Grantor’s legal name, identity, corporate structure
(e.g., by merger, consolidation, change in corporate form or otherwise) sole place of
business (or principal residence if such Grantor is a natural person), chief executive
office, type of organization or jurisdiction of



14









 







organization unless it shall have (a) complied with all applicable requirements of
Section 5.10 of the Credit Agreement, including execution and delivery to the Collateral
Agent of a completed Pledge Supplement, substantially in the form of Exhibit A attached
hereto, together with all Supplements to Schedules thereto and (b) taken all actions
necessary to maintain the continuous validity, perfection and the same or better priority
of the Collateral Agent’s security interest in the Collateral intended to be granted and
agreed to hereby;




          (iv) it shall not take or permit any action which could impair the Collateral Agent’s
rights in the Collateral, except as otherwise permitted in the Credit Agreement; and




          (v) it shall not sell, transfer or assign (by operation of law or otherwise) any
Collateral except as otherwise permitted in accordance with the Credit Agreement.



     4.2 Equipment and Inventory.



          (a) Representations and Warranties. Each Grantor represents and warrants, on the
Closing Date and on each Credit Date, that:




          (i) all of the Equipment, Inventory or other Goods included in the Collateral (other
than Equipment, Inventory or other Goods having an aggregate value of less than $100,000 is
kept for the past one (1) year only at the locations specified in Schedule 4.2 (as such
schedule may be amended or supplemented from time to time), unless such Equipment,
Inventory or other Goods are in the possession or control of any third party (including,
without limitation, any outside processor) or in transit;




          (ii) any Goods now or hereafter produced by any Grantor included in the Collateral
have been and will be produced in compliance with the requirements of the Fair Labor
Standards Act, as amended; and




          (iii) none of the Inventory or Equipment is in the possession of an issuer of a
negotiable document (as defined in Section 7-104 of the UCC) therefor or otherwise in the
possession of a bailee or a warehouseman except as described on Schedule 4.2 (as such
schedule may be amended or supplemented from time to time).



          (b) Covenants and Agreements. Each Grantor covenants and agrees that:




          (i) it shall keep the Equipment, Inventory and other Goods, and any Documents
evidencing any Equipment, Inventory and other Goods (other than Equipment, Inventory or
other Goods having an aggregate value of less than $100,000 in the locations specified on
Schedule 4.2 (as such schedule may be amended or supplemented from time to time) unless
such Equipment, Inventory or other Goods are in the possession or control of any third
party or unless it shall



15









 







have (a) notified the Collateral Agent in writing (including by telecopy or other
electronic means), by executing and delivering to the Collateral Agent a completed Pledge
Supplement, substantially in the form of Exhibit A attached hereto, together with all
Supplements to Schedules thereto, at least twenty (20) days prior to any change in
locations (or such shorter period of time acceptable to the Collateral Agent), identifying
such new locations and providing such other information in connection therewith as the
Collateral Agent may reasonably request and (b) taken all actions reasonably requested by
Collateral Agent to maintain the continuous validity, perfection and the same or better
priority of the Collateral Agent’s security interest in the Collateral intended to be
granted and agreed to hereby, or to enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder, with respect to such Equipment, Inventory or other Goods;




          (ii) it shall keep correct and accurate records in all material respects of the
Inventory, itemizing and describing the kind, type and quantity of Inventory, such
Grantor’s cost therefor and (where applicable) the current list prices for the Inventory,
in each case, in reasonable detail;




          (iii) it will (a) conduct a physical count or a periodic cycle count of the Inventory
at least once per Fiscal Year, and after and during the continuation of an Event of
Default, at such other times as the Collateral Agent requests, (b) at its own expense,
deliver to the Agents the results of each physical verification, which it has made, or has
caused any other Person to make on their behalf, of all or any portion of its Inventory and
(c) maintain a perpetual inventory reporting system at all times;




          (iv) it shall not deliver any Document evidencing any Equipment and Inventory to any
Person other than the issuer of such Document to claim the Goods evidenced therefor or the
Collateral Agent; and




          (v) upon the reasonable request of the Collateral Agent, if any Equipment or Inventory
with an aggregate value in excess of $100,000 is in possession or control of any third
party, each Grantor shall join with the Collateral Agent in notifying the third party of
the Collateral Agent’s security interest and shall use commercially reasonable efforts in
obtaining an acknowledgment from the third party that it is holding such Equipment and
Inventory for the benefit of the Collateral Agent.



     4.3 Receivables.



          (a) Representations and Warranties. Each Grantor represents and warrants, on the
Closing Date and on each Credit Date, that:




          (i) each Eligible Receivable (a) is and will be the legal, valid and binding
obligation of the Account Debtor in respect thereof, representing an unsatisfied obligation
of such Account Debtor, (b) is and will be enforceable in



16









 







accordance with its terms (subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance and other similar laws and judicially developed doctrines in this
area such as substantive consolidation and equitable subordination; (ii) the effect of
general principles of equity and (iii) other commonly recognized statutory and judicial
constraints on enforceability) and (c) is and will be in compliance with all applicable
laws, whether federal, state, local or foreign;




          (ii) none of the Account Debtors in respect of any material Eligible Receivable is the
government of the United States, any agency or instrumentality thereof, any state or
municipality or any foreign government or sovereign. No Eligible Receivable requires the
consent of the Account Debtor in respect thereof in connection with the pledge hereunder,
except any consent which has been obtained; and




          (iii) no Eligible Receivable is evidenced by, or constitutes, an Instrument or Chattel
Paper valued in excess of $25,000 which has not been delivered promptly to, or otherwise
subjected to the control of, the Collateral Agent to the extent required by, and in
accordance with Section 4.3(c).



          (b) Covenants and Agreements: Each Grantor hereby covenants and agrees that:




          (i) it shall keep and maintain at its own cost and expense reasonably satisfactory and
complete records of the Receivables, including, but not limited to, copies of all material
documentation with respect to all Receivables and records of all payments received and all
credits granted on the Receivables, all merchandise returned and all other dealings
therewith;




          (ii) upon the reasonable request of the Collateral Agent, it shall promptly mark
conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all
Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to
the Collateral Agent as provided herein), as well as the Receivables Records with an
appropriate reference to the fact that the Collateral Agent has a security interest
therein;




          (iii) it shall perform in all material respects all of its obligations with respect to
the Receivables;




          (iv) except as otherwise permitted by the Credit Agreement, it shall not amend,
modify, terminate or waive any provision of any Receivable in any manner which could
reasonably be expected to have a Material Adverse Effect on the value of such Receivable as
Collateral. Other than in the ordinary course of business as generally conducted by it on
and prior to the date hereof, and except as otherwise provided in subsection (v) below,
upon the occurrence and during the continuance of an Event of Default or permitted under
the Credit Agreement, such Grantor shall not (w) grant any extension or renewal of the time
of payment of any Receivable, (x) compromise or settle any dispute, claim or



17









 







legal proceeding with respect to any Receivable for less than the total unpaid balance
thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or
(z) allow any credit or discount thereon;




          (v) except as otherwise provided in this subsection, each Grantor shall continue to
collect all amounts due or to become due to such Grantor under the Receivables and any
Supporting Obligation and diligently exercise each material right it may have under any
Receivable, any Supporting Obligation or Collateral Support, in each case, at its own
expense, and in connection with such collections and exercise, such Grantor shall take such
action as such Grantor or the Collateral Agent may deem necessary. Notwithstanding the
foregoing, the Collateral Agent shall have the right upon written notice (which, if no
Event of Default shall have occurred and be continuing, shall be no less than 2 Business
Days prior notice) to notify, or require any Grantor to notify, any Account Debtor of the
Collateral Agent’s security interest in the Receivables and any Supporting Obligation and,
in addition, at any time following the occurrence and during the continuation of an Event
of Default, the Collateral Agent may: (1) direct the Account Debtors under any Receivables
to make payment of all amounts due or to become due to such Grantor thereunder directly to
the Collateral Agent; and (2) enforce, at the expense of such Grantor, collection of any
such Receivables and to adjust, settle or compromise the amount or payment thereof, in the
same manner and to the same extent as such Grantor has the right to do so; and




          (vi) it shall use its commercially reasonable efforts to keep in full force and effect
any material Supporting Obligation or Collateral Support relating to any Receivable.



          (c) Delivery and Control of Receivables. With respect to any Receivables in excess of
$500,000 individually or in the aggregate that is evidenced by, or constitutes, Chattel Paper or
Instruments, each Grantor shall cause each originally executed copy thereof to be delivered to the
Collateral Agent (or its agent or designee) appropriately indorsed to the Collateral Agent or
indorsed in blank: (i) with respect to any such Receivables in existence on the date hereof, on or
prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within
ten (10) days of such Grantor acquiring rights therein. With respect to any Receivables in excess
of $500,000 individually in the aggregate which would constitute “electronic chattel paper” under
Article 9 of the UCC, each Grantor shall take all steps necessary to give the Collateral Agent
control over such Receivables (within the meaning of Section 9-105 of the UCC): (i) with respect
to any such Receivables in existence on the date hereof, on or prior to the date hereof and (ii)
with respect to any such Receivables hereafter arising, within ten (10) days of such Grantor
acquiring rights therein. Any Receivable not otherwise required to be delivered or subjected to
the control of the Collateral Agent in accordance with this subsection (c) shall be delivered or
subjected to such control upon the reasonable request of the Collateral Agent.



18









 





     4.4 Investment Related Property.



          4.4.1 Investment Related Property Generally



          (a) Covenants and Agreements. Each Grantor hereby covenants and agrees that, subject
to the Intercreditor Agreement:




          (i) in the event it acquires rights in any Investment Related Property after the date
hereof, it shall promptly deliver to the Collateral Agent a completed Pledge Supplement,
substantially in the form of Exhibit A attached hereto, together with all Supplements to
Schedules thereto, reflecting such new Investment Related Property and all other Investment
Related Property. Notwithstanding the foregoing, it is understood and agreed that the
security interest of the Collateral Agent shall attach to all Investment Related Property
immediately upon any Grantor’s acquisition of rights therein and shall not be affected by
the failure of any Grantor to deliver a supplement to Schedule 4.4 as required hereby;




          (ii) except as provided in the next sentence, in the event such Grantor receives any
dividends, interest or distributions on any Investment Related Property, or any securities
or other property upon the merger, consolidation, winding up, liquidation or dissolution of
any issuer of any Investment Related Property, then (a) such dividends, interest or
distributions and securities or other property shall promptly be included in the definition
of Collateral without further action and (b) such Grantor shall promptly take all steps, if
any, necessary or advisable to ensure the validity, perfection, priority and, if
applicable, control of the Collateral Agent over such Investment Related Property
(including, without limitation, delivery thereof to the Collateral Agent) and pending any
such action such Grantor shall be deemed to hold such dividends, interest, distributions,
securities or other property for the benefit of the Collateral Agent and shall segregate
such dividends, distributions, Securities or other property from all other property of such
Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred
and be continuing, to the extent permitted to do so under Section 5.12 of the Credit
Agreement, each Grantor may retain all ordinary cash dividends and distributions paid in
the normal course of the business of the issuer and all scheduled payments of interest;




          (iii) each Grantor consents to the grant by each other Grantor of a Security Interest
in all Investment Related Property to the Collateral Agent; and




          (iv) each Grantor agrees that it shall not grant “control” (within the meaning of such
term under Article 9-106 of the UCC) over any Investment Related Property to any Person
other than the Collateral Agent, except as otherwise permitted by the Credit Agreement and
subject to the terms of the Intercreditor Agreement, the Second Lien Term Loan Collateral
Agent.



19









 





          (b) Delivery and Control.




          (i) Each Grantor agrees that with respect to any Investment Related Property in which
it currently has rights it shall comply with the provisions of this Section 4.4.1(b) on or
before the Closing Date and with respect to any Investment Related Property hereafter
acquired by such Grantor it shall promptly comply with the provisions of this Section
4.4.1(b) immediately upon acquiring rights therein, in each case in form and substance
reasonably satisfactory to the Collateral Agent. With respect to any Investment Related
Property that is represented by a certificate or that is an “instrument” (other than any
Investment Related Property credited to a Securities Account) it shall cause such
certificate or instrument to be delivered to the Collateral Agent, indorsed in blank by an
“effective indorsement” (as defined in Section 8-107 of the UCC), regardless of whether
such certificate constitutes a “certificated security” for purposes of the UCC. With
respect to any Investment Related Property that is an “uncertificated security” for
purposes of the UCC issued by an issuer organized under the laws of the U.S. or any state
thereof (other than any “uncertificated securities” credited to a Securities Account), it
shall cause the issuer of such uncertificated security to either (i) register the
Collateral Agent as the registered owner thereof on the books and records of the issuer or
(ii) execute an agreement substantially in the form of Exhibit B hereto, pursuant to which
such issuer agrees to comply with the Collateral Agent’s instructions with respect to such
uncertificated security without further consent by such Grantor.



          (c) Voting and Distributions.




          (i) So long as no Event of Default shall have occurred and be continuing:




	(1)	 	except as otherwise provided in this Agreement or in the Credit Agreement, each Grantor shall
be entitled to exercise or refrain from exercising any and all voting and other consensual
rights pertaining to the Investment Related Property or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the Credit Agreement; provided, no Grantor
shall exercise or refrain from exercising any such right if the Collateral Agent shall have
notified such Grantor that, in the Collateral Agent’s reasonable judgment, such action would
have a Material Adverse Effect; and provided further, such Grantor shall give the Collateral
Agent at least five (5) Business Days prior written notice of the manner in which it intends
to exercise, or the reasons for refraining from exercising, any such right in such
circumstances described in the preceding proviso; it being understood, however, that neither
the voting by such Grantor of any Pledged Stock for, or such Grantor’s consent to, the
election of directors (or similar governing body) at a regularly scheduled annual or other
meeting of stockholders or with respect to ordinary course of business matters at any such
meeting, nor such Grantor’s consent to or approval of any action otherwise permitted under
this Agreement and the Credit Agreement, shall be deemed inconsistent with the terms of this
Agreement or the Credit Agreement within the meaning of this Section




20









 






	 	 	4.4(c)(i)(1), and no notice of any such voting or consent need be given to the Collateral
Agent; and






	(2)	 	the Collateral Agent shall promptly execute and deliver (or cause to be executed and
delivered) to each Grantor all proxies, and other instruments as such Grantor may from time to
time reasonably request for the purpose of enabling such Grantor to exercise the voting and
other consensual rights when and to the extent which it is entitled to exercise pursuant to
clause (1) above;






          (ii) Upon the occurrence and during the continuation of an Event of Default and upon
written notice from the Collateral Agent to the applicable Grantor:




	(1)	 	all rights of such Grantor to exercise or refrain from exercising the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease
and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon
have the sole right to exercise such voting and other consensual rights; and
	 
	(2)	 	in order to permit the Collateral Agent to exercise the voting and other consensual rights
which it may be entitled to exercise pursuant hereto and to receive all dividends and other
distributions which it may be entitled to receive hereunder: (1) each Grantor shall promptly
execute and deliver (or cause to be executed and delivered) to the Collateral Agent all
proxies, dividend payment orders and other instruments as the Collateral Agent may from time
to time reasonably request and (2) each Grantor acknowledges that the Collateral Agent may
utilize the power of attorney set forth in Section 6.1.





          After any and all Events of Default have been cured or waived, Grantor shall have the right to
exercise voting and other consensual rights that it would otherwise be entitled to exercise
pursuant hereto and to receive all dividends and other distributions which it may be entitled to
receive hereunder.



          4.4.2 Pledged Equity Interests



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, on
the Closing Date and on each Credit Date, that:




          (i) Schedule 4.4(A) (as such schedule may be amended or supplemented from time to
time) sets forth under the headings “Pledged Stock, “Pledged LLC Interests,” “Pledged
Partnership Interests” and “Pledged Trust Interests,” respectively, all of the Pledged
Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests
owned by any Grantor and such Pledged Equity Interests constitute the percentage of issued
and outstanding shares of stock, percentage of membership interests, percentage of
partnership interests or percentage of beneficial interest of the respective issuers
thereof indicated on such Schedule;



21









 






          (ii) except as set forth on Schedule 4.4(B), it has not acquired any equity interests
of another entity or substantially all the assets of another entity within the past one (1)
year;




          (iii) except as set forth on Schedule 4.4, it is the record and beneficial owner of
the Pledged Equity Interests free of all Liens, rights or claims of other Persons other
than Permitted Liens and there are no outstanding warrants, options or other rights to
purchase, or shareholder, voting trust or similar agreements outstanding with respect to,
or property that is convertible into, or that requires the issuance or sale of, any Pledged
Equity Interests;




          (iv) without limiting the generality of Section 4.1(a)(v), except for consents already
obtained, required under applicable law or required to be obtained in the ordinary course
of business, no material consent of any Person including any other general or limited
partner, any other member of a limited liability company, any other shareholder or any
other trust beneficiary is necessary or desirable in connection with the creation or
perfection of the security interest of the Collateral Agent in any Pledged Equity
Interests, the First Priority status (with respect to Revolving Credit Priority Collateral)
and Second Priority status (with respect to the Second Lien Term Loan Priority Collateral),
the status of the security interest of the Collateral Agent in the Pledged Equity
Interests, or the exercise by the Collateral Agent of the voting or other rights provided
for in this Agreement or the exercise of remedies in respect thereof;




          (v) none of the Pledged LLC Interests nor Pledged Partnership Interests are or
represent interests in issuers that: (a) are registered as investment companies or (b) are
dealt in or traded on securities exchanges or markets; and




          (vi) except as otherwise set forth on Schedule 4.4(C), all of the Pledged LLC
Interests and Pledged Partnership Interests are or represent interests in issuers that have
opted to be treated as securities under the uniform commercial code of any jurisdiction (to
the extent applicable).



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that:




          (i) without the prior written consent of the Collateral Agent, it shall not vote to
enable or take any other action to: (a) amend or terminate any partnership agreement,
limited liability company agreement, certificate of incorporation, by-laws or other
organizational documents in any way that materially changes the rights of such Grantor with
respect to any Investment Related Property or adversely affects the validity, perfection or
priority of the Collateral Agent’s security interest, (b) other than as permitted under the
Credit Agreement, permit any issuer of any Pledged Equity Interest to issue any additional
stock, partnership interests, limited liability company interests or other equity interests
of any nature or to issue securities convertible into or granting the right of purchase or
exchange for any stock or other equity interest of any nature



22









 







of such issuer (except as permitted in the Credit Agreement), (c) other than as
permitted under the Credit Agreement, permit any issuer of any Pledged Equity Interest to
dispose of all or a material portion of their assets, or (d) cause any issuer of any
Pledged Partnership Interests or Pledged LLC Interests which are not securities (for
purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such
Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for
purposes of the UCC; provided, however, notwithstanding the foregoing, if any issuer of any
Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation
of the foregoing in this clause (d), such Grantor shall promptly notify the Collateral
Agent in writing of any such election or action and, in such event, shall take all steps
necessary or advisable to establish the Collateral Agent’s “control” thereof;




          (ii) it shall comply in all material respects with all of its obligations under any
partnership agreement or limited liability company agreement relating to Pledged
Partnership Interests or Pledged LLC Interests and shall enforce all of its rights with
respect to any Investment Related Property;




          (iii) except as permitted by the Credit Agreement, without the prior written consent
of the Collateral Agent, it shall not permit any issuer (that is a Subsidiary of such
Grantor) of any Pledged Equity Interest to merge, amalgamate, or consolidate unless (i)
such issuer creates a security interest that is perfected by a filed financing statement
(that is not effective solely under section 9-508 of the UCC) in collateral in which such
new debtor has or acquires rights, and (ii) all the outstanding capital stock or other
equity interests of the surviving or resulting corporation, limited liability company,
partnership or other entity is, upon such merger, amalgamation, or consolidation, pledged
hereunder and no cash, securities or other property is distributed in respect of the
outstanding equity interests of any other constituent Grantor provided that if the
surviving or resulting Grantors upon any such merger or consolidation involving an issuer
which is a Foreign Subsidiary, then such Grantor shall only be required to pledge equity
interests in accordance with Section 2.2; and




          (iv) each Grantor consents to the grant by each other Grantor of a security interest
in all Investment Related Property to the Collateral Agent and, without limiting the
foregoing, consents to the transfer of any Pledged Partnership Interest and any Pledged LLC
Interest to the Collateral Agent or its nominee following the occurrence and during the
continuation of an Event of Default and to the substitution of the Collateral Agent or its
nominee as a partner in any partnership or as a member in any limited liability company
with all the rights and powers related thereto.



          4.4.3 Pledged Debt



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, on
the Closing Date and each Credit Date, that Schedule 4.4 (as such schedule may be amended or
supplemented from time to time) sets forth under the



23









 







heading “Pledged Debt” all of the Pledged Debt owned by any Grantor and all of such Pledged
Debt has been duly authorized, authenticated or issued, and delivered and is the legal, valid and
binding obligation of the issuers thereof (subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance and other similar laws and judicially developed doctrines in this area such
as substantive consolidation and equitable subordination; (ii) the effect of general principles of
equity and (iii) other commonly recognized statutory and judicial constraints on enforceability),
and is not in default and constitutes all of the issued and outstanding inter-company Indebtedness;



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that it shall
promptly notify the Collateral Agent of any default under any Pledged Debt that has caused, either
in any individual case or in the aggregate, a Material Adverse Effect.



          4.4.4 Investment Accounts



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, on
the Closing Date and each Credit Date, that:




          (i) Schedule 4.4 hereto (as such schedule may be amended or supplemented from time to
time) sets forth under the headings “Securities Accounts” and “Commodities Accounts,”
respectively, all of the Securities Accounts and Commodities Accounts held by each Grantor.
Except as provided on Schedule 4.4, each Grantor is the sole entitlement holder of each
such Securities Account and Commodity Account, and such Grantor has not consented to, and
is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto, the
Second Lien Term Loan Collateral Agent or otherwise in accordance with the Credit Agreement
and subject to the Intercreditor Agreement) having “control” (within the meanings of
Sections 8-106 and 9-106 of the UCC) over, or any other interest in, any such Securities
Account or Commodity Account or securities or other property credited thereto;




          (ii) Schedule 4.4 hereto (as such schedule may be amended or supplemented from time to
time) sets forth under the headings “Deposit Accounts” all of the Deposit Accounts in which
each Grantor has an interest. Except as provided on Schedule 4.4, each Grantor is the sole
account holder of each such Deposit Account and such Grantor has not consented to, and is
not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto and the
Second Lien Term Loan Collateral Agent or otherwise in accordance with the Credit Agreement
and subject to the Intercreditor Agreement) having either sole dominion and control (within
the meaning of common law) or “control” (within the meanings of Section 9-104 of the UCC)
over, or any other interest in, any such Deposit Account or any money or other property
deposited therein; and




          (iii) Subject to the terms of the Credit Agreement and this Agreement, each Grantor
has taken all actions necessary, including those specified in Section 4.4.4(c), to: (a)
establish Collateral Agent’s “control” (within



24









 







the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the
Investment Related Property constituting Certificated Securities, Uncertificated
Securities, Securities Accounts, Securities Entitlements or Commodities Accounts (each as
defined in the UCC); and (b) establish the Collateral Agent’s “control” (within the meaning
of Section 9-104 of the UCC) over all Deposit Accounts.



          (b) Covenant and Agreement. Each Grantor hereby covenants and agrees with the
Collateral Agent that it shall not close or terminate any Investment Account without the prior
consent of the Collateral Agent unless a successor or replacement account has been established and
to the extent required by the Credit Agreement or this Agreement with respect to which successor or
replacement account a control agreement has been entered into by the appropriate Grantor,
Collateral Agent and securities intermediary or depository institution at which such successor or
replacement account is to be maintained in accordance with the provisions of Section 4.4.4(c).



          (c) Delivery and Control.




          (i) With respect to any Investment Related Property consisting of Securities Accounts
or Securities Entitlements, to the extent required by the Credit Agreement or this
Agreement it shall cause the securities intermediary maintaining such Securities Account or
Securities Entitlement to enter into an agreement, in form and substance reasonably
satisfactory to the Collateral Agent, pursuant to which it shall agree to comply with the
Collateral Agent’s “entitlement orders” without further consent by such Grantor. With
respect to any Investment Related Property that is a “Deposit Account,” to the extent
required by the Credit Agreement or this Agreement such Grantor shall cause the depositary
institution maintaining such account to enter into an agreement, in form and substance
reasonably satisfactory to the Collateral Agent, pursuant to which the Collateral Agent
shall have both sole dominion and control over such Deposit Account (within the meaning of
the common law) and “control” (within the meaning of Section 9-104 of the UCC) over such
Deposit Account. To the extent required by the Credit Agreement or this Agreement, each
Grantor shall have entered into such control agreement or agreements with respect to: (i)
any Securities Accounts, Securities Entitlements or Deposit Accounts that exist on the
Closing Date, as of or prior to the Closing Date and (ii) any Securities Accounts,
Securities Entitlements or Deposit Accounts that are created or acquired after the Closing
Date, as of or prior to the deposit or transfer of any such Securities Entitlements or
funds, whether constituting moneys or investments, into such Securities Accounts or Deposit
Accounts.




In addition to the foregoing, if any issuer of any Investment Related Property is located
in a jurisdiction outside of the United States, to the extent required by the Credit
Agreement or this Agreement such Grantor shall take such additional actions, including,
without limitation, causing the issuer to register the pledge on its books and records or
making such filings or recordings, in each case as may be necessary, under the laws of such
issuer’s jurisdiction to insure the validity, perfection and priority of the security
interest of the Collateral Agent. Subject to



25









 







the terms of the Intercreditor Agreement, upon the occurrence of an Event of Default, the
Collateral Agent shall have the right, without notice to any Grantor, to transfer all or
any portion of the Investment Related Property to its name or the name of its nominee or
agent. In addition, the Collateral Agent shall have the right at any time, without notice
to any Grantor, to exchange any certificates or instruments representing any Investment
Related Property for certificates or instruments of smaller or larger denominations.



     4.5 Material Contracts.



          (a) Covenants and Agreements. Each Grantor hereby covenants and agrees that:




          (i) in addition to any rights under the Section of this Agreement relating to
Receivables, the Collateral Agent may at any time notify, or require any Grantor to so
notify, the counterparty on any Material Contract of the security interest of the
Collateral Agent therein. In addition, after the occurrence and during the continuance of
an Event of Default, subject to the terms of the Credit Agreement, the Collateral Agent may
upon written notice to the applicable Grantor, notify, or require any Grantor to notify,
the counterparty to make all payments under the Material Contracts directly to the
Collateral Agent;




          (ii) it shall perform in all material respects all of its obligations with respect to
the Material Contracts;




          (iii) it shall promptly and diligently exercise each material right to enforce
collection (except the right of termination) it may have under any Material Contract, any
Supporting Obligation or Collateral Support, in each case, at its own expense, and in
connection with such collections and exercise, such Grantor shall take such action as such
Grantor or the Collateral Agent may deem necessary;




          (iv) it shall use its commercially reasonable efforts to keep in full force and effect
any Supporting Obligation or Collateral Support relating to any Material Contract;




          (v) upon the request of the Collateral Agent, each Grantor shall, within thirty (30)
days of the date hereof with respect to any Non-Assignable Contract in effect on the date
hereof and within thirty (30) days after entering into any Non-Assignable Contract after
the Closing Date, request in writing the consent of the counterparty or counterparties to
the Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract or
applicable law to the assignment or granting of a security interest in such Non-Assignable
Contract to Secured Party and use its commercially reasonable efforts to obtain such
consent; and



26









 






          (vi) it shall hereafter use commercially reasonable efforts so as not to permit the
inclusion in any Material Contract to which it hereafter becomes a party of any provision
that could materially impair or prevent the creation of a security interest in, or the
assignment of, such Grantor’s rights and interests in such Material Contract.



     4.6 Letter of Credit Rights.



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, on
the Closing Date and on each Credit Date, that:




          (i) all letters of credit with a face value in excess of $100,000 to which such
Grantor has rights is listed on Schedule 4.6 (as such schedule may be amended or
supplemented from time to time) hereto; and




          (ii) at the reasonable request of the Collateral Agent, it shall use commercially
reasonable efforts to obtain the consent of each issuer of any letter of credit with a face
value in excess of $100,000 to the assignment of the proceeds of the letter of credit to
the Collateral Agent.



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that with
respect to any letter of credit with a face value in excess of $100,000 hereafter arising it shall
use commercially reasonable efforts to obtain the consent of the issuer thereof to the assignment
of the proceeds of the letter of credit to the Collateral Agent and shall deliver to the Collateral
Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto,
together with all Supplements to Schedules thereto.



     4.7 Intellectual Property.



          (a) Representations and Warranties. Except as disclosed in Schedule 4.7(D) (as such
schedule may be amended or supplemented from time to time), each Grantor hereby represents and
warrants, on the Closing Date and on each Credit Date, that:




          (i) Schedule 4.7 (as such schedule may be amended or supplemented from time to time)
sets forth a true and complete list, in all material respects, of all United States
registrations of and applications for Patents, Trademarks, and Copyrights owned by each
Grantor;




          (ii) it is the sole and exclusive owner of the entire right, title, and interest in
and to all Patents, Trademarks and Copyrights listed on Schedule 4.7 as owned by such
Grantor (as such schedule may be amended or supplemented from time to time), and owns or
has the valid right to use all other material Intellectual Property used in or necessary to
conduct its business, free and clear of all Liens, claims and encumbrances, except for
Permitted Liens and the licenses set forth on Schedule 4.7(D) (as it may be amended or
supplemented from time to time);



27









 






          (iii) no Copyrights, Patents and Trademarks material to its business have been
adjudged invalid or unenforceable, in whole or in part, and each Grantor has performed all
acts and has paid all renewal, maintenance, and other fees and taxes required to maintain
each and every registration and application of Copyrights, Patents and Trademarks in full
force and effect;




          (iv) no holding, decision, or judgment has been rendered in any action or proceeding
before any court or administrative authority challenging the validity of, such Grantor’s
right to register, or such Grantor’s rights to own or use, any Intellectual Property
material to such Grantor’s business and no such action or proceeding is pending or, to the
best of such Grantor’s knowledge, threatened;




          (v) all registrations and applications for Copyrights, Patents and Trademarks set
forth on Schedule 4.7 are registered or applied for in the name of the identified Grantor;




          (vi) each Grantor has been using appropriate statutory notice of registration in
connection with its proper marking practices in connection with the use of Patents material
to the business of such Grantor;




          (vii) each Grantor uses adequate standards of quality in the manufacture,
distribution, and sale of all products sold and in the provision of all services rendered
under or in connection with all Trademark Collateral that is material to the business of
any Grantor and has taken all action necessary to insure that all licensees of such
Trademark Collateral owned by such Grantor use such adequate standards of quality in
connection with any such Trademark Collateral licensed to such licensee;




          (viii) to the best of each Grantor’s knowledge, the conduct of such Grantor’s business
does not infringe upon or otherwise violate any trademark, patent, copyright, trade secret
or other intellectual property right owned or controlled by a third party; no claim has
been made in writing that the use of any Intellectual Property that is owned or used by
Grantor (or any of its respective licensees) and material to such Grantor’s business
violates the asserted rights of any third party;




          (ix) to the best of each Grantor’s knowledge, no third party is infringing upon or
otherwise violating any rights in any Intellectual Property owned or used by such Grantor,
or any of its respective licensees;




          (x) except for Permitted Liens and agreements set forth on Schedule 4.7(D), no
settlement or consents, covenants not to sue, nonassertion assurances, or releases have
been entered into by Grantor or to which Grantor is bound that adversely affect Grantor’s
rights to own or use any material Intellectual Property material to such Grantor’s
business; and




          (xi) other than under the security agreements listed on Schedule 4.1(D), no Grantor
has made a previous assignment, sale, transfer or agreement



28









 







that constitutes a present or future assignment, sale, transfer or agreement of any
Intellectual Property that has not been terminated or released.



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:




          (i) it shall not do any act or omit to do any act whereby any of the material
Intellectual Property which is material to the business of Grantor may lapse, or become
abandoned, dedicated to the public, or unenforceable, or which would adversely affect the
validity, grant, or enforceability of the security interest to the Collateral Agent
granted therein;




          (ii) it shall not, with respect to any Trademarks which are material to the business
of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of
the quality of products sold and services rendered under any of such Trademark at a level
at least substantially consistent with the quality of such products and services as of the
date hereof, and each Grantor shall take all steps necessary to insure that licensees of
such Trademarks use such consistent standards of quality;




          (iii) it shall promptly notify the Collateral Agent if it knows or has reason to know
that any Trademark, Patent or Copyright that is material to the business of any Grantor has
or will become (a) abandoned or dedicated to the public or placed in the public domain, or
(b) invalid or unenforceable;




          (iv) it shall take all reasonable steps in the United States Patent and Trademark
Office, the United States Copyright Office, any state registry or any foreign counterpart
of the foregoing, to pursue any application and maintain any registration of each
Trademark, Patent, and Copyright owned by any Grantor that is material to its business;




          (v) in the event that any material Trademark, Patent and Copyright that is material to
a Grantor’s business is infringed, misappropriated, or diluted by a third party, such
Grantor shall promptly take all reasonable actions to stop such infringement,
misappropriation, or dilution and protect its rights in such Intellectual Property;




          (vi) it shall promptly (but in no event more than thirty (30) days after any Grantor
obtains knowledge thereof) report to the Collateral Agent the filing of any application to
register any material Intellectual Property with the United States Patent and Trademark
Office, the United States Copyright Office, or any state registry or foreign counterpart of
the foregoing (whether such application is filed by such Grantor or through any agent,
employee, licensee, or designee thereof) by executing and delivering to the Collateral
Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached
hereto, together with all Supplements to Schedules thereto;



29









 






          (vii) it shall, promptly upon the reasonable request of the Collateral Agent, execute
and deliver to the Collateral Agent any document required to acknowledge, confirm,
register, record, or perfect the Collateral Agent’s interest in any part of the material
Intellectual Property material to the business of such Grantor, whether now owned or
hereafter acquired;




          (viii) it shall take all steps reasonably necessary to protect the secrecy of all
Trade Secrets, including, without limitation, entering into confidentiality agreements with
employees and labeling and restricting access to secret information and documents; and




          (ix) it shall use appropriate statutory notice of registration in connection with its
proper marking practices in connection with the use of any of the Patents.



     4.8 Commercial Tort Claims



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, on
the Closing Date and on each Credit Date, that Schedule 4.8 (as such schedule may be amended or
supplemented from time to time) sets forth all Commercial Tort Claims of each Grantor in excess of
$500,000 either individually or in the aggregate; and



          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that with
respect to any Commercial Tort Claim in excess of $500,000 either individually or in the aggregate
hereafter arising it shall deliver to the Collateral Agent a completed Pledge Supplement,
substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules
thereto, identifying such new Commercial Tort Claims.



SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL GRANTORS.




     5.1 Access; Right of Inspection. Subject to the limitations set forth in Section 5.6 of the
Credit Agreement (a) the Collateral Agent shall have access to all the books, correspondence and
records of each Grantor, and the Collateral Agent and its representatives may inspect the same,
take extracts therefrom and make photocopies thereof, and (b) the Collateral Agent and its
representatives shall also have the right to enter any premises of each Grantor and inspect any
property of each Grantor where any of the Collateral of such Grantor granted pursuant to this
Agreement is located for the purpose of inspecting the same, observing its use or otherwise
protecting its interests therein.



     5.2 Further Assurances.



          (a) Subject to specific limitations contained herein or in the Credit Agreement, each Grantor
agrees that from time to time, at the expense of such Grantor, that it shall promptly execute and
deliver all further instruments and documents, and take



30









 







all further action that the Collateral Agent may reasonably request, in order to create and/or
maintain the validity, perfection or priority of and protect any security interest granted hereby
or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of the foregoing, each Grantor shall:




          (i) authorize the filing of such financing, financing change, or continuation
statements, or amendments thereto, and execute and deliver such other agreements,
instruments, endorsements, powers of attorney or notices, as the Collateral Agent may
reasonably request, in order to perfect and preserve the security interests granted or
purported to be granted hereby;




          (ii) at the reasonable request of the Collateral Agent, take all actions necessary to
ensure the recordation of appropriate evidence of the liens and security interest granted
hereunder in the Intellectual Property with any intellectual property registry in which
said Intellectual Property is registered in the United States or in which an application
for registration is pending including, without limitation, the United States Patent and
Trademark Office, the United States Copyright Office, the various Secretaries of State.




          (iii) at any reasonable time, subject to the limitations set forth in Section 5.6 of
the Credit Agreement, upon request by the Collateral Agent, assemble the Collateral and
allow inspection of the Collateral by the Collateral Agent, or persons designated by the
Collateral Agent; and




          (iv) at the Collateral Agent’s reasonable request, appear in and defend any action or
proceeding that may affect such Grantor’s title to or the Collateral Agent’s security
interest in all or any part of the Collateral.



          (b) Each Grantor hereby authorizes the Collateral Agent to file a Record or Records,
including, without limitation, financing or continuation statements, and amendments thereto, in any
jurisdictions and with any filing offices as the Collateral Agent may determine, in its sole
discretion, are necessary or advisable to perfect the security interest granted to the Collateral
Agent herein. Such financing statements may describe the Collateral in the same manner as
described herein or may contain an indication or description of collateral that describes such
property in any other manner as the Collateral Agent may determine, in its sole discretion, is
necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral
granted to the Collateral Agent herein, including, without limitation, describing such property as
“all assets” or “all personal property, whether now owned or hereafter acquired.” Each Grantor
shall furnish to the Collateral Agent from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection with the Collateral
as the Collateral Agent may reasonably request, all in reasonable detail.



          (c) Each Grantor hereby authorizes the Collateral Agent to modify this Agreement after
obtaining such Grantor’s approval of and signature to such modification by amending Schedule 4.7
(as such schedule may be amended or supplemented from time



31









 







to time) to include reference to any right, title or interest in any existing Intellectual
Property or any Intellectual Property acquired or developed by any Grantor after the execution
hereof (which Intellectual Property, if it existed and was owned by such Grantor as of the
effective date of this Agreement, would be required to be referenced on Schedule 4.7) or to delete
any reference to any right, title or interest in any Intellectual Property in which any Grantor no
longer has or claims any right, title or interest.



     5.3 Additional Grantors. From time to time subsequent to the date hereof, additional Persons
may become parties hereto as additional Grantors (each, an “Additional Grantor”) in accordance with
the terms of the Credit Agreement, by executing a Counterpart Agreement. Upon delivery of any such
counterpart agreement to the Collateral Agent, notice of which is hereby waived by Grantors, each
Additional Grantor shall be a Grantor and shall be as fully a party hereto as if such Additional
Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations
arising hereunder shall not be affected or diminished by the addition or release of any other
Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of Company
to become an Additional Grantor hereunder. This Agreement shall be fully effective as to any
Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails
to become or ceases to be a Grantor hereunder.



SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.




     6.1 Power of Attorney.



          (a) Until payment in full in cash of all Secured Obligation (other than contingent obligations
for which no claim has been asserted) and the cancellation or termination of the Commitments,
Grantor hereby irrevocably appoints the Collateral Agent (such appointment being coupled with an
interest) as such Grantor’s attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor, the Collateral Agent or otherwise, from time to time in
the Collateral Agent’s discretion to take any action and to execute any instrument that the
Collateral Agent may deem reasonably necessary to accomplish the purposes of this Agreement,
including, without limitation, the following:




          (i) upon the occurrence and during the continuance of any Event of Default, to obtain
and adjust insurance required to be maintained by such Grantor or paid to the Collateral
Agent pursuant to the Credit Agreement;




          (ii) upon the occurrence and during the continuance of any Event of Default, to ask
for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the Collateral;




          (iii) upon the occurrence and during the continuance of any Event of Default, to
receive, endorse and collect any drafts or other instruments, documents and chattel paper
in connection with clause (b) above;



32









 






          (iv) upon the occurrence and during the continuance of any Event of Default, to file
any claims or take any action or institute any proceedings that the Collateral Agent may
deem necessary or desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Collateral Agent with respect to any of the Collateral;




          (v) to prepare and file any UCC financing statements against such Grantor as debtor;




          (vi) to prepare, sign, and file for recordation in any intellectual property registry,
appropriate evidence of the lien and security interest granted herein in the Intellectual
Property in the name of such Grantor as debtor;




          (vii) to take or cause to be taken all actions necessary to perform or comply or cause
performance or compliance with the terms of this Agreement, including, without limitation,
access to pay or discharge taxes or Liens (other than Permitted Liens) levied or placed
upon or threatened against the Collateral, the legality or validity thereof and the amounts
necessary to discharge the same to be determined by the Collateral Agent in its sole
discretion, any such payments made by the Collateral Agent to become obligations of such
Grantor to the Collateral Agent, due and payable immediately without demand; and




          (viii) upon the occurrence and during the continuance of any Event of Default,
generally to sell, transfer, pledge, make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the Collateral Agent’s option and
such Grantor’s expense, at any time or from time to time, all acts and things that the
Collateral Agent deems reasonably necessary to protect, preserve or realize upon the
Collateral and the Collateral Agent’s security interest therein in order to effect the
intent of this Agreement, all as fully and effectively as such Grantor might do.



     6.2 No Duty on the Part of Collateral Agent or Secured Parties. The powers conferred on the
Collateral Agent hereunder are solely to protect the interests of the Secured Parties in the
Collateral and shall not impose any duty upon the Collateral Agent or any Secured Party to exercise
any such powers. The Collateral Agent and the Secured Parties shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers, and neither they nor
any of their officers, directors, employees or agents shall be responsible to any Grantor for any
act or failure to act hereunder, except for their own gross negligence, bad faith or willful
misconduct.



SECTION 7. REMEDIES.




     7.1 Generally.



          (a) If any Event of Default shall have occurred and be continuing, the Collateral Agent may
exercise in respect of the Collateral, in addition to all other rights and remedies provided for
herein or otherwise available to it at law or in equity, all the



33









 




rights and remedies of the Collateral Agent on default under the UCC (whether or not the UCC
applies to the affected Collateral) to collect, enforce or satisfy any Secured Obligations then
owing, whether by acceleration or otherwise, and also may pursue any of the following separately,
successively or simultaneously:





          (i) require any Grantor to, and each Grantor hereby agrees that it shall at its
expense and promptly upon request of the Collateral Agent forthwith, assemble all or part
of the Collateral as directed by the Collateral Agent and make it available to the
Collateral Agent at a place to be designated by the Collateral Agent that is reasonably
convenient to both parties;




          (ii) enter onto the property where any Collateral is located and take possession
thereof with or without judicial process;




          (iii) prior to the disposition of the Collateral, store, process, repair or
recondition the Collateral or otherwise prepare the Collateral for disposition in any
manner to the extent the Collateral Agent deems appropriate; and




          (iv) without notice except as specified below or under the UCC, sell, assign, lease,
license (on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral or
any part thereof in one or more parcels at public or private sale, at any of the Collateral
Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or
times and at such price or prices and upon such other terms as the Collateral Agent may
deem commercially reasonable.



          (b) The Collateral Agent or any Secured Party may be the purchaser of any or all of the
Collateral at any public or private (to the extent to the portion of the Collateral being privately
sold is of a kind that is customarily sold on a recognized market or the subject of widely
distributed standard price quotations) sale in accordance with the UCC and the Collateral Agent, as
collateral agent for and representative of the Secured Parties, shall be entitled, for the purpose
of bidding and making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such sale made in accordance with the UCC, to use and apply any of the
Secured Obligations as a credit on account of the purchase price for any Collateral payable by the
Collateral Agent at such sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives
(to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which
it now has or may at any time in the future have under any rule of law or statute now existing or
hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by
law, at least ten (10) days notice to such Grantor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale
having been given. The Collateral Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may, without further notice, be
made at the



34









 







time and place to which it was so adjourned. Each Grantor agrees that it would not be
commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion
thereof by using Internet sites that provide for the auction of assets of the types included in the
Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of
assets. Each Grantor hereby waives any claims against the Collateral Agent arising by reason of
the fact that the price at which any Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale, even if the Collateral Agent
accepts the first offer received and does not offer such Collateral to more than one offeree. If
the proceeds of any sale or other disposition of the Collateral are insufficient to pay all the
Secured Obligations, Grantors shall be liable for the deficiency and the fees of any attorneys
employed by the Collateral Agent to collect such deficiency. Each Grantor further agrees that a
breach of any of the covenants contained in this Section will cause irreparable injury to the
Collateral Agent, that the Collateral Agent has no adequate remedy at law in respect of such breach
and, as a consequence, that each and every covenant contained in this Section shall be specifically
enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except for a defense that no
default has occurred giving rise to the Secured Obligations becoming due and payable prior to their
stated maturities. Nothing in this Section shall in any way alter the rights of the Collateral
Agent hereunder.



          (c) The Collateral Agent may sell the Collateral without giving any warranties as to the
Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or
the like. This procedure will not be considered to adversely affect the commercial reasonableness
of any sale of the Collateral.



          (d) The Collateral Agent shall have no obligation to marshal any of the Collateral.



     7.2 Application of Proceeds. All proceeds received by the Collateral Agent (whether from a
Grantor or otherwise) in respect of any sale, any collection from, or other realization upon all or
any part of the Collateral shall be applied by the Collateral Agent in the manner prescribed by the
Credit Agreement, subject to the terms of the Intercreditor Agreement.



     7.3 Sales on Credit. If Collateral Agent sells any of the Collateral upon credit, Grantor
will be credited only with payments actually made by purchaser and received by Collateral Agent and
applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the
Collateral, Collateral Agent may resell the Collateral and Grantor shall be credited with proceeds
of the sale.



     7.4 Deposit Accounts. If any Event of Default shall have occurred and be continuing, subject
to the terms of the applicable Deposit Account Control Agreement, the Collateral Agent may apply
the balance from any Deposit Account or instruct the bank at which any Deposit Account is
maintained to pay the balance of any Deposit Account in accordance with the Credit Agreement, and
subject to the terms of the Intercreditor Agreement.



35









 





     7.5 Investment Related Property. Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state securities laws, the Collateral
Agent may be compelled, with respect to any sale of all or any part of the Investment Related
Property conducted without prior registration or qualification of such Investment Related Property
under the Securities Act and/or such state securities laws, to limit purchasers to those who will
agree, among other things, to acquire the Investment Related Property for their own account, for
investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges
that any such private sale may be at prices and on terms less favorable than those obtainable
through a public sale without such restrictions (including a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding such circumstances, each
Grantor agrees that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have no obligation to engage in public sales
and no obligation to delay the sale of any Investment Related Property for the period of time
necessary to permit the issuer thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it. If the Collateral Agent determines to exercise
its right to sell any or all of the Investment Related Property in accordance with the terms of
this Agreement, upon the occurrence and during the continuance of an Event of Default and upon
written request, each Grantor shall and shall cause each issuer of any Pledged Stock to be sold
hereunder, each partnership and each limited liability company from time to time to furnish to the
Collateral Agent all such information as the Collateral Agent may request in order to determine the
number and nature of interest, shares or other instruments included in the Investment Related
Property which may be sold by the Collateral Agent in exempt transactions under the Securities Act
and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are
from time to time in effect.



     7.6 Intellectual Property.



          (a) Anything contained herein to the contrary notwithstanding, upon the occurrence and during
the continuation of an Event of Default:




          (i) the Collateral Agent shall have the right (but not the obligation) to bring suit
or otherwise commence any action or proceeding in the name of any Grantor, the Collateral
Agent or otherwise, in the Collateral Agent’s sole discretion, to enforce any Intellectual
Property, in which event such Grantor shall, at the request of the Collateral Agent, do any
and all lawful acts and execute any and all documents required by the Collateral Agent in
aid of such enforcement and such Grantor shall promptly, upon demand, reimburse and
indemnify the Collateral Agent as provided in Section 10 hereof in connection with the
exercise of its rights under this Section, and, to the extent that the Collateral Agent
shall elect not to bring suit to enforce any Intellectual Property as provided in this
Section, each Grantor agrees, at the reasonable request of the Collateral Agent, to use all
commercially reasonable measures, whether by action, suit, proceeding or otherwise, to
prevent the infringement or other violation of any of such Grantor’s rights in the
Intellectual Property by others;



36









 






          (ii) upon written demand from the Collateral Agent, each Grantor shall grant, assign,
convey or otherwise transfer to the Collateral Agent or such Collateral Agent’s designee
all of such Grantor’s right, title and interest in and to the Intellectual Property and
shall execute and deliver to the Collateral Agent such documents as are necessary or
appropriate to carry out the intent and purposes of this Agreement;




          (iii) each Grantor agrees that such an assignment and/or recording shall be applied to
reduce the Secured Obligations outstanding only to the extent that the Collateral Agent (or
any Secured Party) receives cash proceeds in respect of the sale of, or other realization
upon, the Intellectual Property;




          (iv) within five (5) Business Days after written notice from the Collateral Agent,
each Grantor shall make available to the Collateral Agent, to the extent within such
Grantor’s power and authority, such personnel in such Grantor’s employ on the date of such
Event of Default as the Collateral Agent may reasonably designate, by name, title or job
responsibility, to permit such Grantor to continue, directly or indirectly, to produce,
advertise and sell the products and services sold or delivered by such Grantor under or in
connection with the Trademarks, Trademark Licenses, such persons to be available to perform
their prior functions on the Collateral Agent’s behalf and to be compensated by the
Collateral Agent at such Grantor’s expense on a per diem, pro-rata basis consistent with
the salary and benefit structure applicable to each as of the date of such Event of
Default; and




          (v) the Collateral Agent shall have the right to notify, or require each Grantor to
notify, any obligors with respect to amounts due or to become due to such Grantor in
respect of the Intellectual Property, of the existence of the security interest created
herein, to direct such obligors to make payment of all such amounts directly to the
Collateral Agent, and, upon such notification and at the expense of such Grantor, to
enforce collection of any such amounts and to adjust, settle or compromise the amount or
payment thereof, in the same manner and to the same extent as such Grantor might have done,
and with respect to such amounts:




	(1)	 	all amounts and proceeds (including checks and other instruments) received by Grantor in
respect of amounts due to such Grantor in respect of the Intellectual Property Collateral or
any portion thereof shall be received in trust for the benefit of the Collateral Agent
hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid
over or delivered to the Collateral Agent in the same form as so received (with any necessary
endorsement) to be held as cash Collateral and applied as provided by Section 7.7 hereof; and
	 
	(2)	 	except as permitted in the Credit Agreement, Grantor shall not adjust, settle or compromise
the amount or payment of any such amount or release wholly or partly any obligor with respect
thereto or allow any credit or discount thereon.




37









 











          (b) If (i) an Event of Default shall have occurred and, by reason of cure, waiver,
modification, amendment or otherwise, no longer be continuing, (ii) no other Event of Default shall
have occurred and be continuing, (iii) an assignment or other transfer to the Collateral Agent of
any rights, title and interests in and to the Intellectual Property shall have been previously made
and shall have become absolute and effective, and (iv) the Secured Obligations shall not have
become immediately due and payable, upon the written request of any Grantor, the Collateral Agent
shall promptly execute and deliver to such Grantor, at such Grantor’s sole cost and expense, such
assignments or other transfer as may be necessary to reassign to such Grantor any such rights,
title and interests as may have been assigned to the Collateral Agent as aforesaid, subject to any
disposition thereof that may have been made by the Collateral Agent; provided, after giving effect
to such reassignment, the Collateral Agent’s security interest granted pursuant hereto, as well as
all other rights and remedies of the Collateral Agent granted hereunder, shall continue to be in
full force and effect; and provided further, the rights, title and interests so reassigned shall be
free and clear of any other Liens granted by or on behalf of the Collateral Agent and the Secured
Parties.



          (c) Solely upon the occurrence and during the continuance of an Event of Default and for the
purpose of enabling the Collateral Agent to exercise rights and remedies under this Section 7 and
at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, if the Intellectual Property has not been assigned to the Collateral Agent, each Grantor
grants to the Collateral Agent, to the extent it has the right to do so, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other compensation to such
Grantor), subject, in the case of Trademarks, to sufficient rights to quality control and
inspection in favor of such Grantor to avoid the risk of invalidation of said Trademarks, to use,
operate under, license, or sublicense any Intellectual Property now owned or hereafter acquired by
such Grantor, and wherever the same may be located.



     7.7 Cash Proceeds. In addition to the rights of the Collateral Agent specified in Section 4.3
with respect to payments of Receivables, except as otherwise provided in the Credit Agreement, all
proceeds of any Collateral received by any Grantor consisting of cash, checks and other non-cash
items (collectively, “Cash Proceeds”) shall be held by such Grantor in trust for the Collateral
Agent, and deposited in the Cash Collateral Account or a Deposit Account subject to an effective
Deposit Account Control Agreement or otherwise be segregated from other funds of such Grantor, and
shall, forthwith upon receipt by such Grantor, unless otherwise provided pursuant to the
Intercreditor Agreement, be turned over to the Collateral Agent in the exact form received by such
Grantor (duly indorsed by such Grantor to the Collateral Agent, if required) and held by the
Collateral Agent in the Cash Collateral Account or a Deposit Account subject to an effective
Deposit Account Control Agreement. All cash proceeds received by the Collateral Agent (whether
from a Grantor or otherwise) in respect of any sale, any collection from, or other realization upon
all or any part of the Collateral shall be applied by the Collateral Agent in the manner prescribed
by the Credit Agreement, subject to the terms of the Intercreditor Agreement.



38









 





SECTION 8. COLLATERAL AGENT.




     The Collateral Agent has been appointed to act as Collateral Agent hereunder by Lenders and,
by their acceptance of the benefits hereof, the other Secured Parties. The Collateral Agent shall
be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights, and to take or refrain from taking any action (including,
without limitation, the release or substitution of Collateral), solely in accordance with this
Agreement, the Intercreditor Agreement and the Credit Agreement; provided, the Collateral Agent
shall, after payment in full of all Obligations under the Credit Agreement (other than contingent
indemnification obligations for which no claim has been asserted) and the other Credit Documents,
exercise, or refrain from exercising, any remedies provided for herein in accordance with the
instructions of the holders of a majority of the aggregate notional amount (or, with respect to any
Hedge Agreement that has been terminated in accordance with its terms, the amount then due and
payable (exclusive of expenses and similar payments but including any early termination payments
then due) under such Hedge Agreement) under all Hedge Agreements. In furtherance of the foregoing
provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees
that it shall have no right individually to realize upon any of the Collateral hereunder, it being
understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised
solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of
this Section. Collateral Agent may resign at any time by giving thirty (30) days’ prior written
notice thereof to Lenders and the Grantors, and Collateral Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to the Grantors and
Collateral Agent signed by the Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five (5) Business Days’ notice to the
Administrative Agent, to appoint a successor Collateral Agent, and if no Default or Event of
Default shall have occurred and be continuing, with the consent of Company, such consent not to be
unreasonably withheld or delayed. Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the retiring or removed
Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this
Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and
other items of Collateral held hereunder, together with all records and other documents necessary
or appropriate in connection with the performance of the duties of the successor Collateral Agent
under this Agreement, and (ii) execute and deliver to such successor Collateral Agent or otherwise
authorize the filing of such amendments to financing statements, and take such other actions, as
may be necessary or appropriate in connection with the assignment to such successor Collateral
Agent of the security interests created hereunder, whereupon such retiring or removed Collateral
Agent shall be discharged from its duties and obligations under this Agreement. After any retiring
or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the
provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Agreement while it was the Collateral Agent hereunder.



39









 





     If any Grantor fails to perform or comply with any of its agreements contained in this
Agreement and the Collateral Agent, as provided for by the terms of this Agreement or any other
Credit Document, shall itself perform or comply, or otherwise cause performance or compliance, with
such agreement, the expenses of the Collateral Agent incurred in connection with such performance
or compliance, together with interest thereon at the rate then in effect in respect of the
Revolving Loan, shall be payable by such Grantor to the Collateral Agent on demand and shall
constitute Obligations secured by the Collateral.



SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.




     This Agreement shall create a continuing security interest in the Collateral and shall remain
in full force and effect until the payment in full of all Secured Obligations (other than
contingent indemnification obligations for which no claim has been asserted), the cancellation or
termination of the Commitments and the cancellation, expiration or cash collateralization of all
outstanding Letters of Credit, be binding upon each Grantor, its successors and permitted assigns,
and inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit
of the Collateral Agent and its successors, transferees and permitted assigns. Without limiting
the generality of the foregoing, but subject to the terms of the Credit Agreement, any Lender may
assign or otherwise transfer any Loans held by it to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to Lenders herein or
otherwise. Upon the payment in full of all Secured Obligations (other than contingent
indemnification obligations for which no claim has been asserted), the cancellation or termination
of the Commitments, and the cancellation, expiration or cash collateralization of all outstanding
Letters of Credit, the security interest granted hereby shall automatically terminate hereunder and
of record and all rights to the Collateral shall revert to Grantors. Upon any such termination the
Collateral Agent shall, at Grantors’ expense, execute and deliver to Grantors or otherwise
authorize the filing of such documents as Grantors shall reasonably request, including financing
statement amendments and financing change statements to evidence such termination and return to the
Grantors any possessory Collateral that has been delivered by the Grantors to the Collateral Agent
pursuant to the terms of this Agreement as Grantors shall reasonably request. Upon any disposition
of property permitted by the Credit Agreement, the Liens granted herein shall be deemed to be
automatically released and such property shall automatically revert to the applicable Grantor with
no further action on the part of any Person. The Collateral Agent shall, at Grantor’s expense,
execute and deliver or otherwise authorize the filing of such documents as Grantors shall
reasonably request, in form and substance reasonably satisfactory to the Collateral Agent,
including financing statement amendments to evidence such release.



SECTION 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.




     The powers conferred on the Collateral Agent hereunder are solely to protect its interest in
the Collateral and shall not impose any duty upon it to exercise any such



40









 







powers. Except for the exercise of reasonable care in the custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the Collateral Agent
shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Collateral. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody and preservation of
Collateral in its possession if such Collateral is accorded treatment substantially equal to that
which the Collateral Agent accords its own property. Neither the Collateral Agent nor any of its
directors, officers, employees or agents shall be liable for failure to demand, collect or realize
upon all or any part of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or
otherwise. If any Grantor fails to perform any agreement contained herein, the Collateral Agent
may itself perform, or cause performance of, such agreement, and the expenses of the Collateral
Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 of the
Credit Agreement.



SECTION 11. AMENDMENTS, MODIFICATIONS




     The liens, lien priority, administrative priorities and other rights and remedies granted to
the Collateral Agent for the benefit of the Lenders pursuant to this Agreement or any other Credit
Document (specifically, including, but not limited to, the existence, perfection and priority of
the liens provided herein and therein and the administrative priority provided herein and therein)
shall not be modified, altered or impaired in any manner by any other financing or extension of
credit or incurrence of Indebtedness by any of the Credit Parties or by any other act or omission
whatsoever.



SECTION 12. ACKNOWLEDGMENT




     This Agreement is subject to the terms and conditions set forth in the Intercreditor Agreement
or the Credit Agreement in all respects and, in the event of any conflict between the terms of the
Intercreditor Agreement or the Credit Agreement and this Agreement, the terms of the Intercreditor
Agreement or the Credit Agreement, as applicable, shall govern.



     Notwithstanding anything in this Agreement to the contrary, each of the Grantors and the
Collateral Agent agrees that any requirement hereunder that any Grantor deliver any Collateral that
constitutes Second Lien Term Loan Priority Collateral to the Collateral Agent, or that requires any
Grantor to vest the Collateral Agent with possession or “control” (as defined in the UCC) of any
Collateral that constitutes Second Lien Term Loan Priority Collateral, in each case, shall be
deemed satisfied to the extent that, prior to the Discharge of Second Lien Term Loan Obligations
(other than contingent indemnification obligations), such Collateral is delivered to the Second
Lien Term Loan Collateral Agent, or the Second Lien Term Loan Collateral Agent shall have been
vested with such possession or (unless, pursuant to the UCC, “control” may be given concurrently to
the Collateral Agent and the Second Lien Term Loan Collateral Agent) control, in each case, subject
to the provisions of the Intercreditor Agreement.



41









 





SECTION 13. MISCELLANEOUS.



     Any notice required or permitted to be given under this Agreement shall be given in accordance
with Section 10.1 of the Credit Agreement. No failure or delay on the part of the Collateral Agent
in the exercise of any power, right or privilege hereunder or under any other Credit Document shall
impair such power, right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Credit Documents are cumulative to, and not
exclusive of, any rights or remedies otherwise available. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. All
covenants hereunder shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted by an exception to,
or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of
a Default or an Event of Default if such action is taken or condition exists. This Agreement shall
be binding upon and inure to the benefit of the Collateral Agent and Grantors and their respective
successors and permitted assigns. No Grantor shall, without the prior written consent of the
Collateral Agent given in accordance with the Credit Agreement, assign any right, duty or
obligation hereunder. This Agreement and the other Credit Documents embody the entire agreement
and understanding between Grantors and the Collateral Agent and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and thereof.
Accordingly, the Credit Documents may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral agreements between the
parties. This Agreement may be executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered shall be deemed an
original (including counterparts received via telecopy or other electronic means), but all such
counterparts together shall constitute but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document. Each Grantor and the Collateral
Agent hereby acknowledge that (a) value has been given, and (b) such Grantor has rights in its
Collateral and, to the extent that such Grantor does not acquire rights or interests in any of its
Collateral until after the execution and delivery of this Agreement, the security interest created
hereby shall attach to such Collateral at the time such Grantor acquires rights or interests
therein. Each Grantor hereby acknowledges receipt of a copy of this Agreement.



     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ITS CONFLICTS OF



42









 







LAW PROVISIONS (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATION
LAWS).




43












 





     IN WITNESS WHEREOF, each Grantor and the Collateral Agent have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly authorized as of the date
first written above.



	 	 	 
	 

	 	DURA AUTOMOTIVE SYSTEMS, INC. (f/k/a NEW DURA, INC.)
	 
	 	 
	 

	 	NEW DURA OPCO, INC.
	 

	 	NEW DURA HOLDCO, INC.
	 

	 	DURA OPERATING CORP.
	 
	 	 
	 

	 	DURA SPICEBRIGHT, INC.
	 
	 	 
	 

	 	ADWEST ELECTRONICS INC.
	 
	 	 
	 

	 	ATWOOD AUTOMOTIVE, INC.
	 
	 	 
	 

	 	ATWOOD MOBILE PRODUCTS, INC.
	 
	 	 
	 

	 	DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS, INC.
	 
	 	 
	 

	 	DURA GLOBAL TECHNOLOGIES, INC.
	 
	 	 
	 

	 	CREATION GROUP, INC.
	 
	 	 
	 

	 	CREATION GROUP HOLDINGS, INC.
	 
	 	 
	 

	 	CREATION GROUP TRANSPORTATION, INC.
	 
	 	 
	 

	 	KEMBERLY, INC., as Grantors






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 











 









 












	 	 	 	 	 
	 	 	DURA SHIFTER L.L.C., as Grantor
	 
	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,
	 

	 	Its:
	 	SOLE MEMBER






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	 	 	DURA AIRCRAFT OPERATING COMPANY, LLC, as Grantor
	 
	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,
	 

	 	Its:
	 	SOLE MEMBER






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	 	 	DURA BRAKE SYSTEMS, L.L.C., as Grantor
	 
	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,
	 

	 	Its:
	 	SOLE MEMBER






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	 	 	DURA CABLES NORTH LLC, as Grantor
	 
	 	 	 	 
	 

	 	By:
	 	ATWOOD AUTOMOTIVE, INC.,
	 

	 	Its:
	 	SOLE MEMBER






 









 





	 	  	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	 	 	DURA CABLES SOUTH LLC, as Grantor
	 
	 	 	 	 
	 

	 	By:
	 	ATWOOD AUTOMOTIVE, INC.,
	 

	 	Its:
	 	SOLE MEMBER






	 	  	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	  	 
	 

	 	DURA FREMONT L.L.C.
	 

	 	DURA GLADWIN L.L.C.
	 

	 	DURA MANCELONA L.L.C.
	 

	 	DURA SERVICES L.L.C., as Grantors






	 	  	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	 	 	DURA G.P., as Grantor
	 
	 	 	 	 
	 

	 	By:
	 	DURA OPERATING CORP.,
	 

	 	Its:
	 	MANAGING GENERAL PARTNER






	 	  	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






 









 





	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION,

as the Collateral Agent	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 







 









 








SCHEDULE 4.1

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




GENERAL INFORMATION





	(A)	 	Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and Organizational
Identification Number of each Grantor:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Chief Executive	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Office/Sole Place	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	of Business (or	 	 
	 	 	 	 	 	 	 	 	Jurisdiction of	 	Residence if	 	 
	Full Legal	 	Type of	 	Domicile	 	Grantor is a	 	 
	Name	 	Organization	 	Organization	 	Natural Person)	 	Organization I.D.#






	(B)	 	Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor
has conducted business for the past one (1) year:





	 	 	 	 	 
	Full Legal Name	 	Trade Name or Fictitious Business Name






	(C)	 	Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of
Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure
within past one (1) year:





	 	 	 	 	 	 	 	 	 
	Grantor	 	Date of Change	 	Description of Change






	(D)	 	Agreements pursuant to which any Grantor is found as debtor within past one (1) year:





	 	 	 	 	 
	Grantor	 	Description of Agreement






	(E)	 	Financing Statements:





	 	 	 	 	 
	Grantor	 	Filing Jurisdiction(s)





SCHEDULE 4.1-1




 









 





SCHEDULE 4.2

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




	 
	Grantor	 	Location of Equipment, Inventory and other Goods





 









 





SCHEDULE 4.4

TO PLEDGE AND SECURITY AGREEMENT




INVESTMENT RELATED PROPERTY




     (A) Pledged Stock:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	of
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Stock	 	 	 	 	 	No. of	 	Outstanding
	 	 	 	 	Stock	 	Class of	 	Certificated	 	Certificate	 	 	 	 	 	Pledged	 	Stock of the
	Grantor	 	Issuer	 	Stock	 	(Y/N)	 	No.	 	Par Value	 	Stock	 	Stock Issuer





     Pledged LLC Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	LLC Interests of
	 	 	 	 	Limited	 	 	 	 	 	 	 	 	 	 	 	 	 	the Limited
	 	 	 	 	Liability	 	Certificated	 	Certificate No.	 	No. of Pledged	 	Liability
	Grantor	 	Company	 	(Y/N)	 	(if any)	 	Units	 	Company





     Pledged Partnership Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Type of	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	Partnership	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	Interests (e.g.,	 	 	 	 	 	 	 	 	 	Partnership
	 	 	 	 	 	 	 	 	general or	 	Certificated	 	Certificate No.	 	Interests of the
	Grantor	 	Partnership	 	limited)	 	(Y/N)	 	(if any)	 	Partnership





     Pledged Trust Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	Class of Trust	 	Certificated	 	Certificate No.	 	Trust Interests
	Grantor	 	Trust	 	Interests	 	(Y/N)	 	(if any)	 	of the Trust





     Pledged Debt:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Original	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	 	 	Principal	 	Principal	 	 	 	 
	Grantor	 	Issuer	 	Amount	 	Balance	 	Issue Date	 	Maturity Date





 









 





     Securities Account:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Share of Securities	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name





     Commodities Accounts:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Name of Commodities	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name





     Deposit Accounts:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Grantor	 	Name of Depositary Bank	 	Account Number	 	Account Name





(B)




	 	 	 	 	 	 	 	 	 
	Grantor	 	Date of Acquisition	 	Description of Acquisition





(C)




	 	 	 	 	 
	 	 	 	 	Name of Issuer of Pledged LLC Interest/Pledged
	Grantor	 	Partnership Interest





EXHIBIT 4.4-2




 









 





SCHEDULE 4.6

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




	 	 	 	 	 
	Grantor	 	Description of Letters of Credit





 









 





SCHEDULE 4.7

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




INTELLECTUAL PROPERTY





	(A)	 	Copyrights
	 
	(B)	 	Patents
	 
	(C)	 	Trademarks
	 
	(D)	 	Intellectual Property Exceptions





 









 





SCHEDULE 4.8

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




	 	 	 	 	 
	Grantor	 	Commercial Tort Claims





 









 








EXHIBIT A

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




PLEDGE SUPPLEMENT




     This PLEDGE SUPPLEMENT, dated [mm/dd/yy], is delivered by [NAME OF GRANTOR] a [NAME OF STATE
OF INCORPORATION] [Corporation] (the “Grantor”) pursuant to the Revolving Credit Agreement Pledge
and Security Agreement, dated as of June 27, 2008 (as it may be from time to time amended,
restated, modified or supplemented, the “Security Agreement”), among Dura Operating Corp., a
Delaware corporation, New Dura Opco, Inc., a Delaware corporation, the other Grantors named
therein, and General Electric Capital Corporation, as the Collateral Agent. Capitalized terms used
herein not otherwise defined herein shall have the meanings ascribed thereto in the Security
Agreement.



     Grantor hereby confirms the grant to the Collateral Agent set forth in the Security Agreement
of, and does hereby grant and hypothecate to the Collateral Agent, a security interest in and fixed
charge on all of Grantor’s right, title and interest in and to all Collateral to secure the Secured
Obligations, in each case whether now or hereafter existing or in which Grantor now has or
hereafter acquires an interest and wherever the same may be located. Grantor hereby authorizes the
Collateral Agent to file a Record or Records, including financing or financing change or
continuation statements describing such Collateral as “all assets” or “all personal property,
whether now owned or hereafter acquired.” Grantor represents and warrants that the attached
Supplements to Schedules accurately and completely in all material respects set forth the
additional information required pursuant to the Security Agreement and hereby agrees that such
Supplements to Schedules shall constitute part of the Schedules to the Security Agreement.



     IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be duly executed and
delivered by its duly authorized officer as of [mm/dd/yy].



	 	 	 	 	 	 	 
	 	 	[NAME OF GRANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






EXHIBIT B-1




 









 





SUPPLEMENT TO SCHEDULE 4.1

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




Additional Information:





	(A)	 	Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and Organizational
Identification Number of each Grantor:





	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Chief Executive	 	 	 
	 	 	 	 	 	 	 	 	Office/Sole Place	 	 	 
	 	 	 	 	 	 	 	 	of Business (or	 	 	 
	 	 	 	 	 	Jurisdiction of	 	 	Residence if	 	 	 
	Full Legal	 	Type of	 	 	Domicile	 	 	Grantor is a	 	 	 
	Name	 	Organization	 	 	Organization	 	 	Natural Person)	 	 	Organization I.D.#






	(B)	 	Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor
has conducted business for the past one (1) year:





	 	 	 	 	 
	Full Legal Name	 	Trade Name or Fictitious Business Name






	(C)	 	Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of
Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure
within past one (1) year:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name of Grantor	 	 	Date of Change	 	Description of Change






	(D)	 	Agreements pursuant to which any Grantor is found as debtor within past one (1) year:





	 	 	 	 	 
	Name of Grantor	 	Description of Agreement






	(E)	 	Financing Statements:





	 	 	 
	Name of Grantor	 	Filing Jurisdiction(s)





EXHIBIT B-2




 










 





SUPPLEMENT TO SCHEDULE 4.2

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




Additional Information:




	 	 	 	 	 
	Name of Grantor	 	Location of Equipment.

Inventory and other Goods





EXHIBIT B-3




 









 





SUPPLEMENT TO SCHEDULE 4.4

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




Additional Information:


(A)


Pledged Stock:


Pledged Partnership Interests:


Pledged LLC Interests:


Pledged Trust Interests:


Pledged Debt:


Securities Account:


Commodities Accounts:


Deposit Accounts:


(B)




	 	 	 	 	 	 	 	 	 
	Name of Grantor	 	Date of Acquisition	 	Description of Acquisition





(C)




	 	 	 	 	 
	Name of Grantor	 	Name of Issuer of Pledged LLC Interest/Pledged Partnership Interest





[Add stock in Unlimited Companies as subset of Pledged Stock.]




EXHIBIT B-4





 









 








SUPPLEMENT TO SCHEDULE 4.6

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




Additional Information:




	 	 	 	 	 
	Name of Grantor	 	Description of Letters of Credit





EXHIBIT B-5





 









 








SUPPLEMENT TO SCHEDULE 4.7

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




Additional Information:


(A) Copyrights


(B) Patents


(C) Trademarks


(D) Intellectual Property Exceptions




EXHIBIT B-6





 









 








SUPPLEMENT TO SCHEDULE 4.8

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




Additional Information:




	 	 	 	 	 
	Name of Grantor	 	Commercial Tort Claims





EXHIBIT B-7





 









 








EXHIBIT B

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




UNCERTIFICATED SECURITIES CONTROL AGREEMENT




     This Uncertificated Securities Control Agreement dated as of [                    ], 20[                    ] among
[                                        ] (the “Pledgor”), [                    ], as collateral agent for the Secured Parties, (the
“Collateral Agent”) and [                    ], a [                    ] [corporation] (the “Issuer”). Capitalized
terms used but not defined herein shall have the meaning assigned in the Revolving Credit Agreement
Pledge and Security Agreement dated June 27, 2008, among the Pledgor, the other Grantors party
thereto and the Collateral Agent (as amended, restated, supplemented or otherwise modified from
time to time, the “Security Agreement”). All references herein to the “UCC” shall mean the Uniform
Commercial Code as in effect in the State of New York.



     Section 1. Registered Ownership of Shares. The Issuer hereby confirms and agrees that as of
the date hereof the Pledgor is the registered owner of [                    ] shares of the Issuer’s [common]
stock (the “Pledged Shares”) and the Issuer shall not change the registered owner of the Pledged
Shares without the prior written consent of the Collateral Agent.



     Section 2. Instructions. If at any time the Issuer shall receive instructions originated by
the Collateral Agent relating to the Pledged Shares, the Issuer shall comply with such instructions
without further consent by the Pledgor or any other person. The Collateral Agent hereby agrees
that it shall not give any instructions relating to the Pledged Shares unless and Event of Default
has occurred and is continuing.



     Section 3. Additional Representations and Warranties of the Issuer. The Issuer hereby
represents and warrants to the Collateral Agent that, except as permitted under the Credit
Agreement:



     (a) It has not entered into, and until the termination of this agreement will not enter into,
any agreement with any other person relating the Pledged Shares pursuant to which it has agreed to
comply with instructions issued by such other person; and



     (b) It has not entered into, and until the termination of this agreement will not enter into,
any agreement with the Pledgor or the Collateral Agent purporting to limit or condition the
obligation of the Issuer to comply with Instructions as set forth in Section 2 hereof.



     (c) Except for the claims and interest of the Collateral Agent and of the Pledgor in the
Pledged Shares, the Issuer does not know of any claim to, or interest in, the Pledged Shares. If
any person asserts any Lien against the Pledged Shares, the Issuer will promptly upon obtaining
notice thereof notify the Collateral Agent and the Pledgor thereof.



EXHIBIT B-8





 









 








     (d) This Uncertificated Securities Control Agreement is the valid and legally binding
obligation of the Issuer.



     Section 4. Choice of Law. This Agreement shall be governed by the laws of the State of New
York.



     Section 5. Conflict with Other Agreements. In the event of any conflict between this
Agreement (or any portion thereof) and any other agreement (except for the Credit Agreement and
other Credit Documents) now existing or hereafter entered into, the terms of this Agreement shall
prevail. No amendment or modification of this Agreement or waiver of any right hereunder shall be
binding on any party hereto unless it is in writing and is signed by all of the parties hereto.



     Section 6. Voting Rights. Until such time as the Collateral Agent shall otherwise instruct
the Issuer in writing, the Pledgor shall have the right to vote the Pledged Shares. The Collateral
Agent hereby agrees not to give any such instruction unless an Event of Default has occurred and is
continuing.



     Section 7. Successors; Assignment. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective corporate successors or
heirs and personal representatives who obtain such rights solely by operation of law. The
Collateral Agent may assign its rights hereunder only (i) with the express written consent of the
Issuer and (ii) by sending written notice of such assignment to the Pledgor.



     Section 8. Indemnification of Issuer. The Pledgor and the Collateral Agent hereby agree that
(a) the Issuer is released from any and all liabilities to the Pledgor and the Collateral Agent
arising from the terms of this Agreement and the compliance of the Issuer with the terms hereof,
except to the extent that such liabilities arise from the Issuer’s negligence, willful misconduct,
bad faith or breach of this Agreement and (b) the Pledgor, its successors and assigns shall at all
times indemnify and save harmless the Issuer from and against any and all claims, actions and suits
of others arising out of the terms of this Agreement or the compliance of the Issuer with the terms
hereof, except to the extent that such arises from the Issuer’s negligence, willful misconduct, bad
faith or breach of this Agreement and from and against any and all liabilities, actual losses,
damages, reasonable, out-of-pocket costs and expenses, charges, and reasonable fees of one outside
legal counsel until the termination of this Agreement.



     Section 9. Notices. Any notice, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been properly given when
delivered in person, or when sent by telecopy or other electronic means and electronic confirmation
of error free receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the party at the
address set forth below.



EXHIBIT
B-9






 









 








	 	 	 	 	 
	Pledgor:

	 	[Name and Address of Pledgor]	 	 
	Attention:

	 	[                                        ]	 	 
	Telecopier:

	 	[                                        ]	 	 
	 
	 	 	 	 
	Collateral Agent:

	 	General Electric Capital Corporation
	 	 
	Attention:

	 	[                                        ]	 	 
	Telecopier:

	 	[                                        ]	 	 






	 	 	 	 	 
	Issuer:

	 	[Insert Name and Address of Issuer]
	 	 
	Attention:

	 	[                                        ]	 	 
	Telecopier:

	 	[                                        ]	 	 






     Any party may change its address for notices in the manner set forth above.



     Section 10. Termination. The obligations of the Issuer to the Collateral Agent pursuant to
this Control Agreement shall continue in effect until the security interests of the Collateral
Agent in the Pledged Shares have been terminated pursuant to the terms of the Security Agreement
and the Collateral Agent has notified the Issuer of such termination in writing. The Collateral
Agent agrees to provide Notice of Termination in substantially the form of Exhibit A hereto to the
Issuer promptly upon the request of the Pledgor on or after the termination of the Collateral
Agent’s security interest in the Pledged Shares pursuant to the terms of the Security Agreement.
The termination of this Control Agreement shall not terminate the Pledged Shares or alter the
obligations of the Issuer to the Pledgor pursuant to any other agreement with respect to the
Pledged Shares.



     Section 11. Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts (which delivery shall be effective
upon receipt of an original executed copy, telecopy or other electronic transmission).



	 	 	 	 	 	 	 
	 	 	[NAME OF PLEDGOR],

as Pledgor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






EXHIBIT
B-10







 









 








	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION,

as Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ISSUER],

as Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






EXHIBIT
B-11





 









 








Exhibit A




[Letterhead of Collateral Agent]

[Date]




[Name and Address of Issuer]

Attention: [                                        ]




     Re: Termination of Control Agreement



     You are hereby notified that the Uncertificated Securities Control Agreement between you,
[Name of Pledgor] (the “Pledgor”) and the undersigned (a copy of which is attached) is terminated
and you have no further obligations to the undersigned pursuant to such Agreement. Notwithstanding
any previous instructions to you, you are hereby instructed to accept all future directions with
respect to Pledged Shares (as defined in the Uncertificated Control Agreement) from the Pledgor.
This notice terminates any obligations you may have to the undersigned with respect to the Pledged
Shares, however nothing contained in this notice shall alter any obligations which you may
otherwise owe to the Pledgor pursuant to any other agreement.



     You are instructed to deliver a copy of this notice by facsimile transmission to the Pledgor.



	 	 	 	 	 	 	 
	 	 	Very truly yours,

General Electric Capital Corporation,

as Collateral Agent	 	 
	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






 









 





EXHIBIT C

TO REVOLVING CREDIT AGREEMENT

PLEDGE AND SECURITY AGREEMENT




INTELLECTUAL PROPERTY SECURITY AGREEMENT




          [Copyright Security Agreement] [Trademark Security Agreement] [Patent Security Agreement],
dated as of                                          , 2008, by each of the entities listed on the signature pages hereof
(each a “Grantor” and, collectively, the “Grantors”), in favor of GENERAL ELECTRIC CAPITAL
CORPORATION, as collateral agent for the Secured Parties (as defined in the Credit Agreement
referred to below) (in such capacity as collateral agent, the “Collateral Agent”).




W i t n e s s e t h:



Whereas, pursuant to that certain Senior Secured Revolving Credit and Guaranty Agreement,
dated as of June 27, 2008 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among Dura Operating Corp., a Delaware corporation,
(“Company”), Dura Automotive Systems, Inc., (f/k/a “New Dura, Inc.”), a Delaware corporation (
“Holdings”), certain Subsidiaries of Holdings and the Company, the Lenders party thereto from time
to time (the “Lenders”), GE Capital Markets, Inc., as sole book runner, lead arranger, Wachovia
Bank, National Association, as syndication agent, General Electric Capital Corporation, as
administrative agent and as collateral agent and Bank of America, as Issuing Bank and documentation
agent and the Lenders have severally agreed to make extensions of credit to Company upon the terms
and subject to the conditions set forth therein;




          Whereas, the Grantors other than Company are party to the Guaranty pursuant to which
they have guaranteed the Obligations; and




          Whereas, all the Grantors are party to that certain Revolving Credit Agreement Pledge
and Security Agreement dated as of June 27, 2008, in favor of the Collateral Agent for the benefit
of the Secured Parties (the “Pledge and Security Agreement”) pursuant to which the
Grantors are required to execute and deliver this [Copyright][Trademark][Patent] Security
Agreement;




          Now, Therefore, in consideration of the premises and to induce the Lenders and the
Agents to enter into the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to Company thereunder, each Grantor hereby agrees with the Collateral Agent as
follows:




 









 








          Section 1. Defined Terms




          Unless otherwise defined herein, terms defined in the Credit Agreement or in the Pledge and
Security Agreement and used herein have the meaning given to them in the Credit Agreement or the
Pledge and Security Agreement.




          Section 2. [Grant of Security Interest in Copyright Collateral




          Each Grantor, as collateral security for the full, prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of
such Grantor, hereby mortgages, pledges and hypothecates to the Collateral Agent for the benefit of
the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties a
lien on and security interest in, all of its right, title and interest in, to and under all of its
United States registered Copyrights and applications for United States registered Copyrights
referred to on Schedule I hereto (the “Copyright Collateral”):




          OR




          Section 3. [Grant of Security Interest in Patent Collateral




          Each Grantor, as collateral security for the full, prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of
such Grantor, hereby mortgages, pledges and hypothecates to the Collateral Agent for the benefit of
the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties a
lien on and security interest in, all of its right, title and interest in, to and under all of its
United States issued Patents and applications for United States Patents referred to on
Schedule I hereto (the “Patent Collateral”):




          OR




          Section 4. [Grant of Security Interest in Trademark Collateral




          Each Grantor, as collateral security for the full, prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of
such Grantor, hereby mortgages, pledges and hypothecates to the Collateral Agent for the benefit of
the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties a
lien on and security interest in, all of its right, title and interest in, to and under all of its
United States registered Trademarks and applications for United States registered Trademarks
referred to on Schedule I hereto (the “Trademark Collateral”):




          Section 5. Certain Limited Exclusions




          Notwithstanding anything herein to the contrary, in no event shall the [Copyright
Collateral][Patent Collateral][Trademark Collateral] include any rights or




EXHIBIT C-2




 









 




interests if and for so long as the grant of such security interest shall constitute or result
in the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor
therein; provided however that the [Copyright Collateral][Patent Collateral][Trademark
Collateral]shall include and such security interest shall attach immediately at such time as the
condition causing such abandonment, invalidation or unenforceability shall be remedied.




          Section 6. Termination




          Upon the payment in full of all Secured Obligations (other than contingent indemnification
obligations for which no claim has been asserted), the cancellation or termination of the
Commitments, and the cancellation, expiration or cash collateralization of all outstanding Letters
of Credit, the security interest granted hereby shall automatically terminate hereunder and of
record and all rights to the Collateral shall revert to Grantors. The Collateral Agent shall, at
Grantor’s expense, execute and deliver or otherwise authorize the filing of such documents as
Grantors shall reasonably request, in form and substance reasonably satisfactory to the Collateral
Agent, including financing statement amendments to evidence such release.




          Section 7. Pledge and Security Agreement




          The security interest granted pursuant to this [Copyright][Trademark][Patent] Security
Agreement is granted in conjunction with the security interest granted to the Collateral Agent
pursuant to the Pledge and Security Agreement and each Grantor hereby acknowledges and affirms that
the rights and remedies of the Collateral Agent with respect to the security interest in the
[Copyright][Trademark][Patent] Collateral made and granted hereby are more fully set forth in the
Pledge and Security Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.




[Signature Pages Follow]




EXHIBIT C-3




 









 





          In witness whereof, each Grantor has caused this [Copyright][Trademark][Patent]
Security Agreement to be executed and delivered by its duly authorized officer as of the date first
set forth above.




	 	 	 	 	 
	 	 	[                                        ],

as Grantor
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Accepted and Agreed

as of the date first above written:




General Electric Capital Corporation,

as Collateral Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







 









 








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